Delhi District Court
Cbi vs Sh. Suman @ Suman Prakash on 24 October, 2024
CNR No. DLCT-11-000222-2021
CBI No. 27/2021
CBI v. Suman @ Suman Prakash
RC-DAI-2021-A-0005/CBI/ACB/New Delhi
U/s. 7 of PC Act, 1988 (As amended in 2018)
IN THE COURT OF NIYAY BINDU, SPECIAL JUDGE
(PC ACT) CBI-13,
ROUSE AVENUE DISTRICT COURT, NEW DELHI.
Registration No. : CBI-27/2021
Under Section : 7 of PC Act 1988 of The Prevention of
Corruption Act, 1988 (As amended in 2018)
Branch : Anti Corruption Branch/CBI/New Delhi
FIR No. : RC-DAI-2021-A-0005-CBI-ACB-ND
CNR No. : DLCT11-000222-2021
In the matter of: -
CBI
VERSUS
Suman @ Suman Prakash
S/o Sh. Rishal Singh
R/o Present Address: H. No. 2537, Sector-62, Ballabhgarh,
Faridabad, Haryana.
Permanent Address: Village Attarchatta, Tehsil Palwal,
Post Jaindapur, District Faridabad, Haryana.
...........Accused
Name and particulars of complainant : Mohd. Naeem
S/o. Late Sh. Abdul Wahid
(Niyay Bindu)
Page No. 1 of 132 Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT-11-000222-2021
CBI No. 27/2021
CBI v. Suman @ Suman Prakash
RC-DAI-2021-A-0005/CBI/ACB/New Delhi
U/s. 7 of PC Act, 1988 (As amended in 2018)
R/o B-5A, Okhla Vihar,
New Delhi.
Date of Institution : 26.07.2021
Date of reserving judgment : 18.10.2024
Date of pronouncement : 24.10.2024
Decision : Convicted
J U D G M E N T
INTRODUCTION
1. The present proceeding has resulted from an instance of corruption allegedly committed by a public servant.
"Corruption" is being defined as "certain criminal or unethical acts which may be legally or socially unacceptable". The meaning of corruption as given in Oxford Dictionary is more appropriate in context of the Prevention of Corruption Act i.e. "Perversion of a person's integrity in the performance of (esp. official or public) duty or work by bribery etc." The Prevention of Corruption Act was formulated while taking in view the rampant increase in corruption in public sector or government departments. Although, various service rules are being laid down to be followed by the public servants, but out of their personal motives and greed, they put their job, their social reputation and even their soul at stake while they get involved in ill practices like corruption. Out of many types of corruption, bribery is the most common one in government departments. The present case (Niyay Bindu) Page No. 2 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) pertains to this very social stigma of bribery which has become a threat to the society itself.
2. With this introduction, now we are going to deal with the present case.
THE CASE SET UP BY THE PROSECUTION
3. The present case bearing no.RC-DAI-2021-A-0005 was registered against Sh. Suman @ Suman Prakash who was posted as Constable at PS Sarita Vihar, New Delhi for the offence punishable under section 7 of PC Act 1988 (as amended in 2018) on the complaint of Mohd. Naeem whereby alleging that Ct. Suman @ Suman Prakash had demanded a bribe of Rs.2 Lakhs and one latest mobile phone of Rs.20,000/- from him for not arraigning him in the rape case filed by one Ms. Phulo Devi.
(I) VERIFICATION OF THE COMPLAINT
4. On the basis of aforementioned complaint, verification proceedings were conducted on 18.01.2021, 19.01.2021 & 20.01.2021 by Inspector Sh. Amit Pandey, CBI, ACB, Delhi in the presence of the independent witness namely Sh. Rajesh Kumar Vimal. During the verification proceedings, it revealed from the recorded conversations that complainant met accused Ct. Suman @ Suman Prakash at Jasola Police Chowki, where, after bargaining, the bribe amount was decided to be paid (Niyay Bindu) Page No. 3 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) by the complainant to the accused @ Rs.1 Lakh and one mobile phone of approximately Rs.10,000/- to Rs.12,000/-. On the basis of said proceedings, verification reports were prepared and consequently the present case was registered under Section 7 of PC Act, 1988 (as amended in 2018) against accused, Ct. Suman @ Suman Prakash.
(II) LAYING TRAP OF THE ACCUSED
5. After registration of a case by CBI, a trap was laid on 21.01.2021 by the trap team consisting of independent witnesses namely Sh. Rajesh Kumar Vimal and Sh. Arun Kumar, complainant Mohd. Naeem and staff of CBI under the leadership of Insp. Ajay Kumar. Complainant handed over phenolphthalein powder treated currency notes to the accused while the complainant was equipped with DVR with memory card, to record his conversation with the accused during trap proceedings.
6. As per the charge-sheet, during trap proceedings, complainant alongwith independent/shadow witness Sh. Arun Kumar entered the premises of PS Sangam Vihar. Accused asked the shadow witness not to follow them (accused and complainant). After some time, shadow witness saw complainant giving pre-decided signal by scratching his head with both of his hands, while coming out of the Police Station with accused and conveyed the same to trap team. On receiving signal, trap team (Niyay Bindu) Page No. 4 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) rushed inside the building of police station and when accused Ct. Suman @ Suman Prakash moved towards backside of the building, he was apprehended therein and he was identified by shadow witness Arun Kumar. On being challenged by the TLO, the accused confessed to have received the bribe amount of Rs.1 Lakh from the complainant and he was also interrogated in this regard. In the meantime, DVR was taken back from the complainant and later on, the complainant, after hearing the recorded conversation, confirmed that the same conversations were held between him and the accused.
7. As per the charge-sheet, the washes of both hands of the accused and the pocket wash of jacket and pocket wash of pant of the accused were separately taken which turned the sodium carbonate solution into pink and the CFSL report also corroborated the factum of presence of phenolphthalein powder in the said solutions which were separately sealed and labeled. The specimen voice samples of accused and complainant were taken in separate new memory cards through DVR in the immediate presence of independent witnesses alongwith the introductory and concluding voices of both the said witnesses and the said memory cards were also separately packed and sealed. The said recorded conversations contained in Q1, Q2, Q3 and Q4 were sent for the voice expert examination to the CFSL along with the sample voices and it was reported later on that the (Niyay Bindu) Page No. 5 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) sample voices were matching the questioned voices contained in the recorded conversations. After completion of the investigation including recording of statements of various witnesses U/s 161 Cr.PC and obtaining reports in respect of expert opinion along with procurement of requisite material, the charge-sheet was filed before the court.
(III) SANCTION
8. After completion of investigation, sanction for prosecution against accused Suman @ Suman Prakash has been obtained from competent authority before filing the charge-sheet.
(IV) CHARGE
9. The Ld. Predecessor Court took cognizance of offence in the present charge-sheet and summoned the accused vide order dated 10.09.2021. After hearing the parties, charge was framed on 23.10.2021 for the offence punishable under Section 7 of The Prevention of Corruption Act, 1988 (as amended in 2018) against accused Suman @ Suman Prakash.
10. As per the charge framed, accused Suman @ Suman Prakash, while posted as Constable at PS Sarita Vihar, demanded bribe of Rs.1 Lakh and a mobile phone from the complainant Mohd. Naeem on behalf of SHO, PS Sarita Vihar as reward for not arraigning the complainant in a rape case filed by one Ms. (Niyay Bindu) Page No. 6 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) Phulo Devi and on 21.01.2021, accused Suman @ Suman Prakash obtained/accepted said amount of Rs.1 Lakh as bribe/undue advantage from the complainant for aforesaid purpose and hence, accused has committed offence punishable U/s 7 of Prevention of Corruption Act, 1988 (as amended in 2018).
11. In response to the charge framed against the accused, he pleaded not guilty and claimed trial. The case accordingly proceeded for prosecution evidence.
DESCRIPTION OF PROSECUTION EVIDENCE
12. After framing of charge, prosecution was called upon to prove its case by examining the witnesses listed in the list of witnesses filed along with the charge-sheet. Availing the same, the prosecution examined total 16 witnesses.
13. The prosecution witnesses, examined before the court, can be broadly categorized into four categories.
1) The first category is that of Material Witness relating to the incident i.e.
a) PW-2 Mohd. Naeem (Complainant) (Niyay Bindu) Page No. 7 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
2) The second category of prosecution witnesses are those witnesses who were involved in the investigation of the case at various stages, comprising of:
a) PW-3 Sh. Rajesh Kumar Vimal (Independent Witness)
b) PW-4 Sh. Amit Kumar Pandey (Verification Officer)
c) PW-5 Sh. Arun Kumar (Independent/shadow Witness)
d) PW-14 Insp. Ajay Kumar (Trap Laying Officer)
e) PW-16 Insp. Sandeep Kumar Tiwari (Investigating Officer)
3) The third category of prosecution witnesses consists of official witnesses who played an important role for smooth investigation of the case and they are comprising of:
a) PW-1 Sh. Rajendra Prasad Meena (Sanctioning Officer)
b) PW-6 Sh. Pawan Singh ( Nodal Officer)
c) PW-7 Sh. Rajiv Vashisth (Nodal Officer)
d) PW-8 Sh. Kamal Kumar (Nodal Officer)
e) PW-9 Sh. V. B. Ramteke (CFSL Expert)
f) PW-10 Sh. Nawal Mukhiya
g) PW-13 Dr. Subrat Kumar Choudhary (CFSL Voice Expert)
4) The fourth category of witnesses are the miscellaneous prosecution witnesses which comprises of:
a) PW-11 SI Bijender Singh
b) PW12 SI Satish Kumar
c) PW-15 Insp. Anant Kumar Gunjan (SHO, PS Sarita Vihar) (Niyay Bindu) Page No. 8 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
14. Before proceeding further, it is pertinent to make a brief mention of the role and deposition of these prosecution witnesses category wise as referred herein above, however, their deposition has also been referred to in respect of the necessary ingredients of the offence with which the accused has been charged viz-a-viz the rival contentions advanced by Ld. Senior PP for CBI as well as Ld. Defense Counsel. Even the detailed cross examination of these witnesses is not being mentioned for the sake of brevity, but the same shall be referred to during the course of appreciating the legal as well as factual issues advanced by the parties.
(I) MATERIAL WITNESSES
15. PW-2 Mohd. Naeem was the complainant and witness of verification and trap proceeding in the present case. He has deposed that a case was lodged in PS Sarita Vihar by complainant Phulo Devi against one Raju and Aslam Burni with the allegation of rape and both these persons were known to the witness. He further deposed that Raju was arrested in the said case on 05-07 January, 2021 and on the next day of his arrest, SHO PS Sarita Vihar telephonically called the witness at PS Sarita Vihar but he did not go and missed his calls thereafter and then, he also received a call from Suman Prakash, who asked the witness as to why he was not going to the SHO and the witness (Niyay Bindu) Page No. 9 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) asked as to what would he do by reaching the SHO. Accused Suman subsequently visited the shop of witness and insisted to visit the SHO and thereafter also, Suman Prakash kept on calling the witness. The witness has further deposed that when on 15.01.2021, the witness went to the PS, Suman Prakash took him to the SHO and SHO checked the mobile of the witness and showed display picture of three persons namely Aslam Burni and Sunil (friend of the witness) as well as that of the witness himself and then the SHO showed him a photo of the house of the witness at Okhla whereby telling the witness that Aslam Burni will get his house demolished and that the SHO also threatened the witness that he will implicate him in the aforesaid rape case and also asked the witness to talk to Suman Prakash in this regard who was standing in that room itself, while giving gestures used for counting money (witness demonstrated the gesture of counting money during his deposition). Thereafter, the witness received telephonic call from Suman on his mobile to meet at Police Post Jasola and when the witness reached there, Suman wrote on a piece of paper and while showing that paper, he said that SHO wanted Rs.3 Lakhs and that SHO would not buzz from the demand.
16. It is further deposed by the witness that he kept thinking over the aforesaid demand whole night and next day, he alongwith his friend namely Shiv Kumar visited CBI office at (Niyay Bindu) Page No. 10 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) CGO Complex, Lodhi Road, New Delhi and met Mr. Ranjeet, Dy. SP and finally, handed over his complaint, typed in Hindi, to the said CBI officer on 18.01.2021. Mr. Ranjeet went through the complaint and called 3-4 officials while asking one of them to take action on the complaint.
17. Witness has further deposed that the said official to whom direction was given to take action, asked the witness to furnish the mobile number of himself as well as that of the accused but on the said day, no call was received from accused Suman Prakash, therefore, the official asked the witness to come next morning. Next day, witness again went to CBI office and after waiting, he received a call from Suman, while keeping his mobile on speaker mode and the said call was recorded in the recorder in the presence of Sarkari Gawah (independent witness), wherein, Suman Prakash asked the witness as to what was done by him and he assured the accused that he was making arrangement of money. Thereafter, the witness alongwith Sarkari Gawah (independent witness) and 3-4 more persons left for Police Post Jasola, while, the recorder was lying in the pocket of the witness and Sarkari Gawah (independent witness) was instructed to follow him to see if he was talking to Suman or not but on that day, the Police Post was found to be locked.
(Niyay Bindu) Page No. 11 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
18. The witness further deposed that next morning, he again reached CBI office and on the instruction of CBI officer, he made a call on the mobile of Suman Prakash and the said call was also recorded and in the same manner, he went to the Police Post Jasola with independent witness and before talking to him, Suman Prakash asked Sarkari Gawah to sit outside. The witness told Suman Prakash that he could not pay him so much amount, but Suman Prakash said that SHO will not agree and also that the accused was not demanding the same for himself and that if everything goes well and the witness is happy about the same, then, he should give the accused a mobile phone which the accused will get for him on a lesser cost and that the witness told him that he was making arrangement of money. It is further deposed that after he came back to his shop with Sarkari Gawah, the CBI officer heard the recorded conversation from the recorder and the witness was instructed to come next morning and also to bring Rs.1 Lakh in cash.
19. It is further deposed by the witness that next morning, he went to CBI office with the said cash amount of Rs.1 Lakh and that a new Sarkari Gawah was also present on that day, while, previous Sarkari Gawah was already present and the witness also deposed about the demonstration proceeding. It is stated that on the instruction of CBI officer, the witness arranged a car and the team members left for Police Post Jasola. It is stated (Niyay Bindu) Page No. 12 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) that on the instruction of CBI officer, he made a call to Suman Prakash to find out his location and he also told the accused that he had made arrangement, while, Suman Prakash informed the witness that he was not present at the Police Post on that moment, so all the team members reached the shop of complainant/witness till Suman Prakash made a call on his mobile and the said call was recorded and thereafter, the witness along with Sarkari Gawah went on his scooty to the said Police Post, while, rest of the team members went by different vehicles. After reaching over there, the witness called Suman who informed that he was busy in a meeting, so the witness kept standing outside the PS for about half an hour, thereafter, Suman Prakash came out of the building and called him through signal. It is further deposed that Suman Prakash asked about the independent witness and then, invited the witness to come inside the building and stopped the independent witness there outside and took the witness to the IO room in the building.
20. It is further deposed that someone called Suman Prakash and he stopped outside talking with that person, while the witness went inside the room and waited for Suman Prakash. It is further deposed that being apprehensive as the witness was willing to come out of the PS at the earliest, when Suman Prakash was entering the room, out of his anxiety, the witness took out and put the powder treated money over the table and (Niyay Bindu) Page No. 13 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) while telling Suman Prakash that he was going, the witness came out of that room. It is stated that Suman Prakash asked him to stop, while the witness told Suman Prakash that he shall not receive any call either from SHO or from anyone else thereafter. Thereafter, the witness came out of the room while giving signal to the team members by putting his hand over the head which was noticed by the Sarkari Gawah who was standing near the gate of the building and he (independent witness) also gave the same signal to the other team members.
21. It is further deposed that on the instructions of CBI officer, he handed over the recorder and when he reached on the backside of the building, which was an open space, he saw that Suman Prakash as well as another police official had been caught hold by CBI officials and the witness also verified Suman Prakash. It is further stated that SHO also reached there and the witness told CBI officials that SHO was the actual culprit and SHO went back after seeing them. It is further stated that thereafter, one CBI official brought a box containing certain glass bottles which were taken out and then, witness went aside to smoke and after his return, he saw two glasses having pink colour liquid and those glasses were then packed and labeled while Suman Prakash was taken to IO room and witness was asked to sit outside that IO room. It is further deposed that at about 12 midnight, witness was called inside that room and he signed (Niyay Bindu) Page No. 14 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) certain papers. It is further deposed that thereafter, the witness was called into the SHO room wherein CBI officer asked the witness if he knew the SHO and the witness responded in affirmative. It is further deposed that at around 4-5 am, CBI officers took Suman from the PS.
22. It is further deposed that the witness went to CBI office next morning wherein he met same CBI IO and other CBI officer Mr. Sandeep, while both the Sarkari Gawah also came there. It is further deposed that CBI officer kept the SIM card in a plastic cover and then in an envelope and witness as well as both the independent witnesses put their signatures on the paper envelope and other related articles.
23. The said witness/complainant had identified his signatures on the FIR at point X. The witness exhibited the memory cards wherein the audio files of Q1, Q2, Q3 and Q4 were recorded as Ex.PW2/Articles-1, Ex.PW2/Articles-2, Ex.PW2/Articles-3, Ex.PW2/Articles-4 Ex.PW2/Articles-5 while the audio recordings were played before the witness and he identified the conversations as well as the voices of independent witness, that of the accused Suman as well as his own voice.
24. The said witness was also cross-examined by the Ld. PP for the CBI with the permission of the court wherein the (Niyay Bindu) Page No. 15 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) witness was confronted with his statement U/s 161 Cr.PC and was asked certain questions.
(II) WITNESSES OF INVESTIGATION
25. PW3 Sh. Rajesh Kumar Vimal is the independent witness, who deposed that when he was posted as Veterinary Inspector in the Office of DC (South Zone), SDMC, New Delhi, somewhere in January or February 2021, on the instruction of his Administrative Officer, he reported to CBI office. The witness has further deposed that Insp. Pandey informed him about the complaint of the complainant, received in CBI, wherein there were allegations about some police official namely Suman demanding bribe from the complainant and was being briefed by Insp. Pandey and that the complainant also told the witness about police official Suman harassing him and demanding bribe. The witness further deposed that Insp. Pandey inserted one memory card like chip in the voice recording device which was checked and found blank and was handed over to the complainant. The witness stated that Insp. Pandey instructed him to remain close to the complainant while complainant was instructed to make a call to the police official to find out his location and complainant told that the police official has given time of evening. It is further deposed that around 8-10 staff, Insp. Pandey and witness went in around 3-4 vehicles to Okhla and complainant also reached the place on his scooty along with one other person. After some time, (Niyay Bindu) Page No. 16 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) police official came there when complainant went to meet the accused and after 10-15 minutes, the complainant as well as the police official came out of the PS and thereafter, the witness along with complainant came back on his scooty to the place where CBI officials had left them. The witness has deposed that thereafter, the complainant handed over the recording device to Insp. Pandey and on his instructions, the witness narrated the facts about what did he see there in the Police Post and witness accordingly narrated about the same.
26. It is further deposed by PW3 that after reaching CBI office, Insp. Pandey played the recordings in the voice recorder and all the proceedings were prepared on computer and signed by Insp. Pandey, the witness himself and some other persons. The witness identified his signatures on the verification memo dated 18.01.2021 as Ex.PW3/A (colly.) and the verification memo dated 19.01.2024 as Ex.PW3/B. The witness further deposed that next morning, in the CBI office, complainant called Suman 2-3 times on the instructions of Insp. Pandey, while keeping the mobile phone on speaker mode. The witness has further deposed that thereafter, a new chip was inserted in the recording device and blankness of the chip was ensured and the introductory voice of the witness was recorded therein. The witness has further deposed that complainant told Insp. Pandey that Suman has declined to meet the complainant that day.
(Niyay Bindu) Page No. 17 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
27. PW3 has further deposed that he again visited CBI office next day when complainant was already present there who made a call to Suman and informed that Suman had given time of 5.00 pm so as to meet at Police Post and Insp. Pandey instructed complainant to bring Rs.1 Lakh in the currency notes of higher denomination on next day and also to fix meeting time in the evening.
28. It is further deposed that on next day, they reached CBI office again and that the complainant brought Rs.1 Lakh containing currency notes of Rs.2000/- and handed over the same to Insp. Pandey and on the instructions of Insp. Pandey, the numbers of currency notes were noted down and thereafter, one of the CBI official applied powder over the currency notes and demonstration was conducted.
29. PW-3 further deposed that after lunch, all team members left CBI office in 5-6 vehicles. On the instructions of Insp. Pandey, complainant called the accused who asked complainant to come to PS SaritaVihar and all the team members left for PS Sarita Vihar. After going inside the PS, complainant came out after around five minutes and gave some sort of signal on seeing of which Insp. Pandey asked all other team members to rush inside the PS and made a telephonic call to witness and (Niyay Bindu) Page No. 18 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) asked him to reach at the back side of the PS where the witness found that two persons including the accused were caught hold by the CBI officers. The witness has further deposed that on instructions, he recovered Rs.1 Lakh from the pocket of pant of the other person in the denomination of Rs.2000/- each. Witness has further deposed that the hand washes of the accused were taken and the water of the hand washes turned pink and that washes of pockets of the jacket as well as the pockets of pant of the accused also turned pink and that the jacket and pant were wrapped in cloth pulanda and sealed and all these articles were duly signed by the witness, the other independent witness, Insp. Pandey and other CBI officials.
30. In his answer to a court question, the witness informed that the amount of Rs.1 Lakh which were recovered by him was handed over to Insp. Pandey and the numbers of the currency notes were tallied with the list previously prepared by CBI and then the said currency notes were sealed and signed by PW-3, the other witness and the CBI officer, who tallied the number with the list. The witness has further informed in an answer of a court question that two mobile phones of Suman (accused) were seized by CBI. The witness has identified his signatures on Verification Memo, Pre-Trap Memorandum, Post rap Memorandum, Arrest Cum Personal Search of the accused, the rough Site Plan, two Voice Identification Cum Transcription (Niyay Bindu) Page No. 19 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) Memos dated 09.02.2021 (D-10& D-11) as well as other relevant articles. The witness also identified his introductory voice in an audio file played before the court and he also identified various conversations as to on which occasions, those conversations took place between the complainant and the accused.
31. PW-4 Insp. Amit Kumar Pandey, who was the verification officer, has deposed that the complaint bearing CO No. 09/2021 was marked to him by SP, CBI, ACB for verification and report, wherein complainant Mohd. Naeem was alleging that Sh. Suman, Constable, PS Sarita Vihar was demanding Rs.1 Lakh and one mobile phone for not arraigning him in a rape case filed by one Ms. Phulo Devi and that he was demanding the said bribe on behalf of SHO of the said PS. The witness has further deposed that he arranged one independent witness Rajesh Kumar Vimal of SDMC and introduced the witness and the complainant with one another and shown the complaint to the independent witness. He further deposed that to verify the demand, a DVR and a new memory card was arranged and after ensuring its blankness, introductory voice of independent witness was recorded in the memory card while SI Mukesh Pandey assisted him in the process. The witness has further deposed that all the calls which were exchanged by complainant and accused, were recorded in the said memory card and thereafter, the witness, SI Mukesh Pandey, the independent witness and complainant reached nearby (Niyay Bindu) Page No. 20 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) Jasola Police Post but due to non-availability of the accused, verification was decided to be continued next day.
32. PW-4 has further deposed that on 19.01.2021, complainant and independent witness reached CBI office and met the witness and from the conversation between complainant and accused, the team came to know that the accused was not available on that day and accordingly the verification was postponed for next day.
33. The witness further deposed that on 20.01.2021, some calls were made from the mobile of complainant to Suman Prakash and finally accused informed the complainant that he shall reach Jasola Police Post in one-two hours and again the team reached Jasola Police Post. The complainant on the instructions of the witness went inside the Police Post to meet accused Suman Prakash along with the independent witness as shadow witness and after coming back, he narrated the incident which took place inside the Police Post, wherein he informed that he (complainant) negotiated the bribe amount and requested the accused to settle the same for Rs.1 Lakh excluding the mobile phone of value of Rs.10-12,000/-. The complainant also informed that Suman Prakash told him that he will not receive any call from Bhati Ji in future and all these conversations were recorded in the memory card through DVR. The witness has further (Niyay Bindu) Page No. 21 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) deposed that a verification memo was prepared in this regard, duly signed by witness himself, SI Mukesh Pandey, the complainant and the independent witness. The witness has further deposed that since demand on the part of the accused was clear, the witness recommended to register an FIR against the accused.
34. The witness has further deposed that thereafter, DVR and CBI brass seal which were used for proceedings were given to independent witness with directions to produce the same on the next day and he also directed the complainant to arrange the bribe amount of Rs.1 Lakh and come to CBI office on the next day and both were also instructed by the witness not to disclose the matter to anyone. The witness has further stated that an FIR was registered on 21.01.2021 and was marked to Insp. Ajay Kumar, under whose leadership, a trap team was constituted wherein the complainant, independent witness Rajesh Kumar Vimal as well as another independent witness, namely Arun Kumar and the present witness (PW-4) were the members and the complainant produced Rs. 1 Lakh (50 notes of Rs.2000/-) and that the articles of verification i.e. Q-1, Q-2 and Q-3 were taken in police possession.
35. The witness has further deposed that the team members were introduced to each other and denomination of each note of Rs.1 Lakh were noted down and the demonstration in (Niyay Bindu) Page No. 22 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) respect of phenolphthalein powder and sodium carbonate solution in water was given by Insp. Umesh Kaushik. The witness has further stated that the notes produced by complainant were treated with phenolphthalein powder and kept in the pant pocket of the complainant and a new memory card was inserted in DVR wherein introductory voices of both independent witnesses were recorded after ensuring its blankness. The witness has further stated that the complainant was directed for giving signal or missed call on the mobile phone of the witness or that of the TLO after delivery of the bribe amount wherein witness Arun Kumar was directed to accompany the complainant to act as a shadow witness while both the independent witnesses were directed to give same signal after seeing the transaction or signal by the complainant and also a pre-trap memorandum was prepared in respect of these proceedings and all the concerned persons signed the same in token of its correctness.
36. The witness further deposed that thereafter, all the team members left CBI office and reached Jasola Police Post and in the meanwhile a mobile conversation which took place between the complainant and the accused wherein the accused asked the complainant to come to PS Sarita Vihar, was recorded in the memory card. The team members thereafter reached PS Sarita Vihar while the complainant and the independent witness reached there on scooty of the complainant. After waiting for (Niyay Bindu) Page No. 23 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) some time, one person in police uniform approached the complainant and Arun Kumar and called the complainant through gesture to come inside the PS and stopped Arun Kumar outside.
37. The witness further deposed that after some time, the complainant was seen coming out of the PS while giving signal and Sh. Arun Kumar also gave the signal, thereafter TLO alerted the team members and the team members rushed inside the PS. The witness further deposed that the accused was caught at the backside of the PS building and accused was challenged by the TLO for demanding and accepting the bribe from the complainant. The witness further deposed about all the procedure of taking hand washes of accused which turned into pink and keeping those washes in bottles duly capped, wrapped, sealed, labeled and duly signed by the concerned team members. The witness has also deposed that DVR was taken from the complainant.
38. The witness further deposed that on the directions of the TLO, accused took off his jacket, the pocket wash of which turned into pink and thereafter, the pocket washes of the pants of the accused also turned into pink and both washes were separately bottled, wrapped, labeled and signed by the TLO and both the independent witnesses. The witness further stated that the recovered tainted bribe amount of Rs.1 Lakh was also kept in (Niyay Bindu) Page No. 24 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) an envelope which was sealed and signed by both the independent witnesses. The witness further deposed that an investigation copy of the memory card was prepared and the memory card was packed and sealed separately while a rough transcription of the recorded conversation was prepared. It is further deposed that the specimen voices of the accused and complainant were also recorded in two separate memory cards along with introductory and concluding voices of both the independent witnesses and thereafter, the said memory card as well as the DVR were packed in separate envelopes and signed by the TLO and the independent witnesses.
39. PW-4 further deposed that accused was arrested vide separate arrest cum personal search memo and two mobile phones were found and seized from the possession of the accused and his car was also searched separately while the documents relating to the case of PS Sarita Vihar, in which the accused was demanding the bribe, were also taken. The witness further deposed that a post trap memo was also prepared in respect of all these proceedings and signed by all the team members. The witness identified accused Suman Prakash in the court. The witness proved on record the verification memo dated 20.01.2021 Ex.PW4/A while identifying his signature on the same as well as on the other verification memos dated 18.01.2021 and 19.01.2021. The witness also identified his signatures on the pre-
(Niyay Bindu) Page No. 25 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) trap memo, post trap memo as well as on the respective envelopes containing Q-1, Q-2 and Q-3.
40. PW-5 Sh. Arun Kumar was an independent witness in the present matter and he deposed that on the instructions of Assistant Commissioner, he reported at CBI office on 20- 21.01.2021, where he met CBI Inspector Ajay. Inspector Ajay told the witness that they were going to conduct a trap proceedings in respect of the demand of bribe of Rs.1 Lakh and a mobile phone by a constable of Delhi Police on behalf of SHO whereas complainant Mohd. Naeem, one independent witness Sh. Rajesh Vimal and some CBI officials were also present there and a demonstration was conducted by a CBI officer. The witness has further deposed that the complainant brought amount of Rs.1 Lakh and handed over the same to the CBI officer and the distinctive numbers and the denomination of currency notes was entered into the computer system by CBI officials and the said currency notes were also smeared with phenolphthalein powder and then after demonstration, the same were kept in the pocket of the complainant. The witness has further deposed that CBI Inspector Ajay instructed the complainant not to touch the said notes and also to take out the same only on specific demand of the accused and the witness was also instructed to overhear the conversation of the complainant with the accused, while the other independent witness was instructed to remain with the CBI team.
(Niyay Bindu) Page No. 26 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) The witness has further stated that CBI official arranged a Voice Recording machine, a new packet of memory card and after ensuring the blankness of the memory card, introductory voices of this witness and that of the other independent witness, Sh. Rajesh Vimal were recorded and a memorandum in respect of these proceedings was prepared, which was proved on record by the said witness as Ex.PW5/A.
41. PW5 has further deposed that the team members left CBI office in two/three vehicles, besides a bike and proceeded to nearby Jasola Chowki and when the complainant called Ct. Suman Prakash who asked complainant to reach Sarita Vihar police station, accordingly all the team members proceeded towards PS Sarita Vihar, while the present witness reached over there with the complainant on his scooty and on the way, a call was received by complainant from Ct. Suman Prakash. The witness further deposed that TLO instructed him to accompany the complainant inside the PS and then complainant made a call to Ct. Suman Prakash who asked the complainant to enter inside the PS from the main gate to meet him. The witness further stated that when he and the complainant entered the PS, they met Ct. Suman Prakash who enquired about the witness and complainant told him that the witness was his cousin, who was unwell and complainant was taking him to hospital and then Ct. Suman Prakash took the complainant privately into the building of the (Niyay Bindu) Page No. 27 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) PS and after sometime, the complainant came out of the building while making pre decided gesture towards the witness and then the witness also made the same gesture to the CBI officer as an indication and the team members immediately entered into the building while PW5 also accompanied them. The witness further deposed that all of them crossed the building and went into the open backyard where CBI officials caught hold of the accused and CBI officials took the DVR from the complainant. On the instructions of CBI officials, Rajesh Kumar Vimal recovered bribe amount from the pocket of the accused and he as well as PW5 himself tallied the serial numbers and denominations of the currency notes from the list prepared by CBI. The witness has further deposed that hand washes as well as the wash of the pocket of jacket of the accused turned into pink and the same were packed, sealed and signed by both the independent witnesses and then all the team members proceeded inside the building of the PS.
42. PW5 has further deposed that the SHO of the Police Station was told about the proceedings who arranged for two rooms and on the instructions of CBI officers, the accused changed his clothes and thereafter, the washes of the pockets of the pants of accused was also taken separately which also turned pink. The witness further deposed that from the pockets of the accused, two mobile phones were recovered, out of which, one (Niyay Bindu) Page No. 28 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) was an I-phone and both the mobile phones as well as pants of the accused were packed and sealed separately by CBI officials and the same were signed by both the independent witnesses.
43. The witness has further deposed that a new blank memory card was inserted in the DVR wherein specimen voice of Ct. Suman Prakash was recorded along with the introductory and concluding voices of PW5 and the other independent witness. The witness has further stated that in the same manner, the voice of complainant was also recorded in a new memory card along with the introductory and concluding voices of PW5 and the other independent witness and the DVR along with these memory cards were separately packed, sealed and signed by both the witnesses as well as one of the CBI officials. It is further deposed that the CBI officials also obtained a photocopy of the case file of the rape case from the SHO regarding which the bribe was demanded by Ct. Suman Prakash from the complainant. It is also deposed that CBI official also prepared a site plan regarding the spot and a memo regarding the whole proceeding which was signed by PW5 himself, the complainant, the other independent witness as well as the CBI official and thereafter, CBI official took the formal arrest of the accused and then all of them left for CBI office. The witness has stated that CBI metallic seal, which was used in these proceedings was handed over to him by CBI official.
(Niyay Bindu) Page No. 29 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
44. The witness has further deposed that after 10-12 days, he was called by CBI official namely Sandeep for verification of voices which were previously recorded in the memory cards. He has deposed that the whole conversation was also there in Hindi transcription which was being heard and tallied by him and the other independent witness and signed by both of them after verifying the same, while the complainant who was also there, verified his voice and signed on the transcription. The witness has deposed that the said proceeding was reduced in writing and signed by the witness, the other independent witness, the complainant and the IO.
45. The witness identified the accused present in the court and he also identified his signatures on pre-trap memo (Ex.PW5/A), post trap memo (Ex.PW5/B), arrest-cum-personal search memo (Ex.PW5/C) of the accused, rough site plan (Ex.PW5/D), voice identification-cum-transcription memo (Ex.PW5/E) and the transcript itself (Ex.PW5/F). The witness also identified his signatures on various Articles i.e. Right Hand Wash of accused as Ex.PW5/Article-1, Left Hand Wash of accused as Ex.PW5/Article-2, Left Pocket of Jacket Wash of accused as Ex.PW5/Article-3 and Right Back Pocket Wash of Pant of accused as Ex.PW5/Article-4. The witness further identified his signatures various articles pertaining to the trap (Niyay Bindu) Page No. 30 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) proceedings i.e., Ex.PW5/Article-5 to Ex.PW5/Article-11 and Ex.PW5/Article-24 to Ex.PW5/Article-28.
46. PW5 further identified his signatures on the memory card (Ex.PW2/Article-4), the plastic cover (Ex.PW5/Article-14), the memory card packet (Ex.PW5/Article-13) and brown envelope (Ex.PW5/Article-12) containing the same, all pertaining to EXHIBIT-Q4. The witness also identified the voices of independent witness Sh. Rajesh Vimal, the complainant and accused Suman Prakash in various audio files. The witness further identified his signatures on other relevant articles as well.
47. PW14 Insp. Ajay Kumar is the TLO in the present case. He deposed that he was called by SP, CBI, Sh. Ashok Kumar on 21.01.2021 and informed about the present FIR and the same was entrusted to him for investigation and a trap team was constituted by SP for the same. The witness deposed that on the same day, complainant and verification officer Insp. Amit Kumar Pandey were present there and the witness discussed the complaint with the complainant and confirmed the contents of the same and the verification officer also confirmed the demand of Rs.1 Lakh and a mobile phone by Sh. Suman. PW14 further deposed that in the presence of trap team members and two independent witnesses Sh. Rajesh Kumar Vimal and Sh. Arun Kumar, purpose of assembly was explained to all and FIR, (Niyay Bindu) Page No. 31 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) complaint and verification memo were shown and read over to them and the recorded conversations were also heard. The witness further deposed that complainant produced an amount of Rs.1 Lakh consisting 50 notes of Rs.2000/- each and the details of said currency notes were noted down in pre-trap memo and a trap kit was arranged and demonstration in respect of phenolphthalein powder and sodium carbonate solution was conducted. PW14 further deposed that the currency notes produced by complainant were treated with phenolphthalein powder and independent witness Arun Kumar kept those notes in the pocket of the complainant while the complainant was directed by PW14 not to touch those notes and to deliver the same to the accused on his specific demand or to any other person on the direction of the accused.
48. PW14 further deposed that a new blank memory card was inserted into the DVR wherein introductory voices of both the independent witnesses were recorded and thereafter, a pre-trap memo was prepared and signed by all the concerned persons. The witness further deposed that thereafter, the trap team left for Police Chowki Jasola wherein independent witness Arun Kumar was directed to act as shadow witness and remain close to the complainant to overhear his conversation with accused and also to see the delivery of the amount. The witness has further deposed that after reaching the spot at around 4.40 pm, (Niyay Bindu) Page No. 32 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) complainant received a call from accused Suman Prakash in which he directed the complainant to reach PS Sarita Vihar and the team left for PS Sarita Vihar.
49. The witness further deposed that when the team reached PS Sarita Vihar, accused came out of the building and by gesture, he directed complainant to come with him and stopped shadow witness outside. PW14 further deposed that after some time, complainant gave the pre-decided signal while coming out of the building and after seeing the same, shadow witness further conveyed the signal to other team members who thereafter, rushed inside the building and followed the accused as identified by the shadow witness. Witness further deposed that accused was apprehended at the backside of the building and after being challenged by the witness, accused confessed about his receiving of bribe amount of Rs.1 Lakh from the complainant and on the direction of PW14, independent witness Rajesh Kr. Vimal recovered the said amount from the pocket of pant of accused and both the independent witnesses tallied the amount of GC notes with the details mentioned in pre-trap memo and thereafter, both hand washes of the accused were taken separately which turned into pink. PW14 further deposed that on his direction, complainant narrated the incident which took place inside the PS. (Niyay Bindu) Page No. 33 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
50. PW14 further deposed that on his request, SHO of the PS allotted two separate rooms for conducting further proceedings and accused was taken to the room of SI Satish Bhati of the said PS and accused was also directed to take off his jacket and the pocket wash of the said jacket was also taken which turned into pink and that the trap money and jacket of the accused were separately packed, sealed and signed by the witness and the same was also signed by both the independent witnesses. PW14 further deposed that the hand washes and jacket pocket washes of the accused were also packed in bottles which were capped, sealed, labeled and the labels were signed by PW14 and both the independent witnesses. PW14 further deposed that thereafter, pocket washes of pants of the accused were also taken which turned into pink and the said pink solution was transferred in a separate glass bottle and that the bottle as well as pants of the accused were packed, sealed, labeled and signed by PW14 along with both independent witnesses.
51. PW14 has further deposed that the DVR was taken from Rajesh Kr. Vimal and an investigating copy of the recording was prepared from the memory card by SI Mukesh Kr. Pandey and thereafter, the memory card was packed in its original packing and then, kept in an envelope which was sealed and signed by PW14 and both independent witnesses. The witness further deposed that a rough site plan was prepared by SI Mukesh (Niyay Bindu) Page No. 34 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) Kr. Pandey which was signed by SI Mukesh Kr. Pandey, PW14 himself and both the independent witnesses and in the meantime, accused was arrested vide the arrest cum personal search memo which was signed by the accused, both the independent witnesses and PW14 himself. Witness deposed that two mobile phones, one of make Apple and another of make VIVO were taken from the possession of accused, seized and packed in separate envelopes and sealed and then signed by PW14 and both the independent witnesses and thereafter, the car of the accused was also being searched by Insp. Negi in the presence of independent witness Sh. Rajesh Kumar Vimal.
52. PW14 further deposed that on his direction, rough transcription of the recording contained in the memory card was prepared and signed by himself and both the independent witnesses and thereafter, the specimen voice samples of accused Suman Prakash and complainant were taken in separate new memory cards along with introductory and concluding voices of both the independent witnesses and the said memory cards were packed, sealed and signed by both the independent witnesses, PW14 and the complainant and that the DVR was separately packed, sealed and signed by PW14 as well as both the independent witnesses. Witness further deposed that thereafter, he collected the documents pertaining to the FIR lodged by Ms. Phulo Devi from the concerned SHO along with copies of DD (Niyay Bindu) Page No. 35 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) entries and copy of the visitor's register along with certificate U/s 65-B of Indian Evidence Act. The witness deposed that post trap memorandum containing all the proceedings was prepared and signed by all the trap team members including the independent witnesses and the complainant and thereafter, accused was taken to CBI office.
53. PW14 identified his signatures on Pre Trap Memorandum (Ex.PW5/A). He also identified the Post Trap Memorandum (Ex.PW5/B) and arrest cum personal search memo (Ex.PW5/C), both being prepared by him as well as his signatures on the same. The witness further identified his signature on the rough site plan Ex.PW5/D as well as on various other articles. The witness also identified both the mobile phones, seized from the possession of the accused ie Ex.PW5/Article-24 and Ex.PW5/Article-26 and also his signatures on the envelopes containing the said articles i.e. Ex.PW5/Article-23 and Ex.PW14/Article-2 respectively.
54. PW16 Insp. Sandeep Kumar Tiwari is the IO of the case. He deposed that he took over the investigation of the present case from Insp. Ajay Kumar, CBI, ACB, New Delhi whereby taking all the documents and articles pertaining to verification, pre and post trap proceedings into his custody and he also collected documents pertaining to this case from PS Sarita (Niyay Bindu) Page No. 36 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) Vihar and recorded statements of relevant witnesses U/s 161 Cr.PC. The witness further deposed that he sent the relevant exhibits i.e. washes of accused for chemical examination to CFSL through SP, CBI, ACB,Delhi vide letter dated 29.01.2021 ie Ex.PW9/B. The witness further deposed that he sent the other relevant exhibits/articles for forensic voice identification to CFSL through SP, CBI, ACB, Delhi vide letter dated 03.02.2021 ie Ex.PW13/A. The witness further deposed that he conducted voice identification-cum-transcription proceedings in respect of verification and prepared a memo Ex.PW16/A and a separate voice identification cum transcription proceeding was conducted in respect of trap vide the memo Ex.PW5/E (collectively). The witness further deposed that he conducted another voice identification proceedings of Suman Prakash by officials of PS Sarita Vihar vide memos Ex.PW15/A (collectively) and Ex.PW12/A.
55. It is further deposed by the witness that during investigation, he collected the relevant CDRs and related documents in respect of mobile phone numbers from the Nodal Officers of the concerned companies vide production cum seizure memos Ex.PW6/A and Ex.PW7/A. The witness has further deposed that after completion of investigation, he sought sanction for prosecution of the competent authority through the SP of the (Niyay Bindu) Page No. 37 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) Branch and received the requisite sanction ie Ex.PW1/A against the accused and thereafter, filed the present charge-sheet.
(III) OFFICIAL WITNESSES
56. PW-1 is Sh. Rajender Prasad Meena, Deputy Commissioner of Police who is the sanctioning authority of the present accused. He deposed that in the month of March 2021, his office received a request letter dated 24.03.2021 from SP, CBI, ACB, New Delhi thereby seeking sanction of the prosecution of Constable Suman Prakash in respect of the present case. The witness has deposed that on the basis of perusal of the record and documents, he was satisfied that those materials prima facie showed involvement of Suman in the alleged crime and then he accorded sanction for his prosecution in this case. The witness proved on record the sanction order Ex. PW1/A.
57. PW6 is Sh. Pawan Singh, Nodal Officer in respect of Vodafone Idea Ltd., who had deposed that in response to a notice of CBI, he handed over CDR, CAF and a certificate under section 65-B under Indian Evidence Act and location chart of mobile numbers 9958329870, 9811397786 and 875087091 to Inspector Sandeep Kumar Tiwari on 16.02.2021 vide seizure memo Ex. PW6/A. (Niyay Bindu) Page No. 38 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
58. PW7 is Sh. Rajeev Vashist, Nodal Officer in respect of Bharti Airtel Ltd., who had deposed that in response to a notice of CBI, he handed over CDR, CAF and a certificate under section 65-B under Indian Evidence Act and location chart of mobile number 9711529033 to Inspector Sandeep Kumar Tiwari on 25.02.2021 vide seizure memo Ex. PW7/A.
59. PW8 is Sh. Kamal Kumar, Nodal Officer in respect of Jio Infocomm Ltd., who had deposed that in response to a notice of CBI, he handed over CDR, CAF and a certificate under section 65-B Indian Evidence Act and location chart of mobile number 9315852279 to Inspector Sandeep Kumar Tiwari on 05.03.2021 vide forwarding letter Ex. PW8/A.
60. PW9 is Sh. V. B. Ramteke, who is Principal Scientific Officer (Chemistry) in CFSL, New Delhi. This witness deposed that through the official file of his office, four sealed bottles were received in CFSL on 01.09.2021 for chemical examination and report thereof which were marked in their lab as Exhibit-1, Exhibit-2, Exhibit-3 and Exhibit-4. The witness has further deposed that on examination, all the above exhibits gave positive test result for the presence of phenolphthalein powder and the witness proved on record his detailed chemical examination report dated 10.02.2021 as Ex. PW9/A as well as the forwarding letter dated 29.01.2021 as Ex. PW9/B. The witness (Niyay Bindu) Page No. 39 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) also identified his seal and signature on the bottles containing right hand wash of accused (Ex.PW5/Article-1), left hand wash of accused (Ex.PW5/Article-2), left pocket of jacket wash of accused (Ex.PW5/Article-3), the right back pocket wash of pant of accused (Ex.PW5/Article-4) and the other related articles as well.
61. PW10 is Sh. Nawal Mukhiya, Assistant Engineer, CPWD, who deposed that on the instructions of his senior official/Superintending Engineer, he went to CBI office on 22.03.2021 to meet Insp. Sunil Kumar while one, Sh. A. K. Gunjan was also present there. He deposed that Insp. Sunil Kumar checked the mobile phone of Sh. A. K. Gunjan and took the printouts of screen shots of conversation between Suman Prakash and Sh. A. K. Gunjan and the said printouts were signed by Sh. A. K. Gunjan, Insp. Sunil Kumar and the witness himself and then the said mobile phone of Sh. A. K. Gunjan was seized and sealed by Insp. Sunil Kumar and the said printouts were packed in an envelope and the said whole proceeding was prepared in writing which was signed by the witness himself, Insp. Sunil Kumar and Sh. A. K. Gunjan. The witness identified the mobile operation and data retrieval memo dated 22.03.2021 as Ex.PW10/A and his signatures on the same. The witness further identified the printouts of the screen shots of the WhatsApp as Ex.PW10/B as well as his signatures on the same.
(Niyay Bindu) Page No. 40 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) The witness further identified the seized mobile phone of Sh. A.K. Gunjan as Ex.PW10/Article-2 and his signatures on the same as well as on the envelope containing the same i.e. Ex.PW10/Article-1 and on the transparent back cover as Ex.PW10/Article-3.
62. PW13 is Dr. Subrat Kumar Choudhary, who was Senior Scientific Officer in Grade-II in Physics Division, who received this case in CFSL from SP, CBI, New Delhi for voice examination on 03.02.2021 vide forwarding letter of the same date. The witness deposed that the parcels received were marked as Q1, Q2, Q3, Q4, S1, S2 and DVR which were duly sealed. He further deposed that after opening the same, four micro SD Cards were found in Q1, Q2, Q3 and Q4 which were marked as Exhibit- Q1, Exhibit-Q2, Exhibit-Q3 and Exhibit-Q4 in the lab respectively and S1 and S2, two micro SD Cards were also found which were marked as Exhibit-S1 and Exhibit-S2 in the lab which contained voice recordings of Suman @ Suman Prakash and Mohd. Naeem respectively and the parcel DVR contained one digital voice recorder of make Sony containing no audio recording. The witness deposed that on examination, specimen voices contained in Exhibit-S1 and Exhibit-S2 tallied with the questioned voices contained in Exhibit-Q1, Exhibit-Q2, Exhibit- Q3 and Exhibit-Q4 and copy of said exhibits were prepared by the witness and submitted to CBI. The witness further deposed (Niyay Bindu) Page No. 41 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) that after examination, the exhibits were kept in separate envelopes along with the opening envelopes and sealed with his official wax seal and on intimation, authorized representative of SP, CBI, New Delhi collected the same from the laboratory. The witness proved on record his forensic voice examination report dated 13.05.2021 as Ex.PW13/A-1.
63. The witness has further identified his signatures as well as his official stamp on various articles including, Ex.PW13/A-2, Ex.PW13/A-3, Ex.PW13/A-4, Ex.PW13/A-5, Ex.PW13/A-6, Ex.PW13/A-7 and Ex.PW13/A-8.
(IV) MISCELLANEOUS WITNESSES
64. PW15 is Insp. Anant Kumar Gunjan, who was the then, SHO of PS Sarita Vihar, New Delhi. He deposed that in PS Sarita Vihar, Delhi, a rape case FIR No.11/2021 was registered on 06.01.2021 on the complaint of one Phulo Devi against Raju, Saira, and Aslam Barni which was initially investigated by PSI Nisha but later on, transferred to SI Satish Bhati. He has further deposed that on the demand of IO of CBI, the witness handed over case file of the said FIR and he also joined the proceedings in respect of voice identification of accused Suman Prakash and identified his voice. The witness proved on record the voice identification cum transcription memo Ex.PW15/A and he identified the voice of accused Suman Prakash before the court (Niyay Bindu) Page No. 42 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) when certain audio files (from Q1, Q2, Q3 and Q4) containing the conversations recorded during the investigation, were played during his deposition.
65. PW11 SI Bijender Singh has deposed that he knew accused Suman Prakash as he was working in the same beat area of Police post Jasola in 2021 and the witness while identifying his signatures on Production cum Seizure Memo already Ex.A-5, deposed that he handed over certified copies of duty roaster dated 05.01.2021 to 06.01.2021 of PS Sarita Vihar along with Certificate U/s 65-B Indian Evidence Act to CBI. The witness identified his signatures on Voice Identification cum Transcription Memo ie Ex.PW11/A.
66. PW12 SI Satish Kumar, who was posted at PS Sarita Vihar and working as Division Officer in the Division of Jasola, Delhi and he deposed that he knew Suman Prakash as he was working in the beat area of PS Jasola and that he visited CBI office in respect of the present case and met Mr. Sandeep Tiwari. The witness identified his signatures on production cum seizure memo dated 17.02.2021 (Ex.A-3) whereby deposing that vide the said memo, he handed over certain documents mentioned in the same to CBI. He further deposed that on 06.02.2021, one FIR bearing no.11/2021 under Section 376 IPC which was registered by complainant Ms. Phulo Devi, was marked to the witness by (Niyay Bindu) Page No. 43 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) SHO Insp. Anant Kumar Gunjan for investigation. The witness identified his signatures on voice identification cum transcription memo dated 16.02.2021 ie Ex.PW12/A.
67. After deposition of these prosecution witnesses, prosecution evidence was closed and accused was examined under Section 313 Cr.P.C.
PLEA OF ACCUSED UNDER SECTION 313 CR.P.C.
68. In his statement under Section 313 Cr.P.C., accused replied that he has never contacted the complainant PW2 nor asked him to go to SHO and that he is not aware about the case, lodged by Smt. Phulo Devi as he has never been associated with the same. The accused alleged that PW2 has wrongly identified him in the court under the pressure of CBI. The accused has further stated that it was a false complaint and that he never demanded money or mobile phone from the complainant and also that all the documents were prepared later on at CBI office. The accused has further stated that both the reports of CFSL, Ex.PW9/A and Ex.PW13/A have been obtained by providing inputs in forwarding letters and not on the basis of actual examination of exhibits. The accused has also disputed the sanction order whereby alleging that the same has been obtained by sending a draft sanction order to the sanctioning authority and the same has been granted in a mechanical manner. The accused (Niyay Bindu) Page No. 44 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) has further stated that he is innocent and has been falsely implicated in the present case as he has never demanded and accepted any money from the complainant and nothing was recovered from his possession. The accused did not lead defence evidence.
ARGUMENTS OF CBI
69. Ld. Senior PP has argued that the demand on behalf of the accused has been duly proved by the complainant Mohd. Naeem himself and there was nothing in the complaint that SHO asked for money from the complainant but it was only the present accused who was in contact with the complainant in this regard. Ld. Sr. PP further submitted that the prosecution has proved the fact that accused Suman Prakash has demanded Rs.1 Lakh as bribe/illegal gratification as well as a mobile phone from the complainant. Prosecution has also proved the fact that since the complainant did not want to pay the bribe amount to accused, therefore, he submitted the complaint to CBI for taking necessary legal action against the accused. Ld. Sr. PP has pointed out to the cross-examination of PW2 wherein he has emphatically denied the suggestion that he has falsely implicated the accused in this case or that there was no demand from Suman Prakash. Ld. Sr. PP has pointed out that the complainant and certain other prosecution witnesses have duly identified the accused in the court. This is also submitted by Ld. Senior PP that PW2 and PW3 (Niyay Bindu) Page No. 45 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) have deviated on certain points in their evidence but still the factum of demand has been proved by both the said witnesses. This is submitted that if a witness supports the prosecution on major issues he has to be given weightage. This is also argued by Ld. Senior PP that the deposition of PW2, PW4 and PW5 as well as the expert report in respect of voice of the accused is sufficient to establish demand against the accused.
70. Ld. Sr. PP has further argued that in respect of demand, it has been deposed by the complainant that when SHO asked him to talk to accused Suman Prakash, the accused remained standing in that room itself while giving gestures used for counting money and this fact has been corroborated by the conversations recorded during the verification proceedings.
71. It is further argued that the fact of making complaint against accused by the complainant has also been proved by the Verification Officer/PW4 Insp. Amit Kumar Pandey, who deposed that in the complaint Ex.PW2/A, it was alleged that Sh. Suman, Constable, PS Sarita Vihar was demanding Rs.1 Lakh and one mobile phone from the complainant for not arraigning him in a rape case, filed by one Ms. Phulo Devi.
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72. Ld. Sr. PP has specifically argued that neither of the witnesses, who participated in different proceedings, has stated that they did not participate in the said proceedings.
73. Ld. Sr. PP has further argued that the contents of the complaint made by the complainant was verified by the Verification Officer Insp. Amit Kumar Pandey (PW4) in the presence of independent witness Rajesh Kumar Vimal (PW3). Ld. Sr. PP further argued that the verification proceeding conducted by Verification Officer has corroborated the fact of the complaint submitted by the complainant vide verification memo Ex.PW4/A. The proceedings of verification has been corroborated by the independent witness PW3 and PW4 who also deposed that PW2 was instructed by PW4 (Inspector Pandey) to stay close to the complainant as a shadow witness.
74. This is pointed out by Ld. Senior PP that the verification officer i.e. PW4 has stated in his deposition that the independent witness was arranged through duty officer which shows the independence of the witness.
75. Ld. Senior PP has referred to the deposition of PW5 who is one of the independent witness Arun Kumar whereby stating the said witness has proved the recovery of the trap money and the proceeding of taking specimen voice of the accused in the (Niyay Bindu) Page No. 47 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) presence of both the independent witnesses. Ld. Senior PP has further pointed out that PW5 has identified the accused in the court as well as the trap money and he also identified the voice of the accused in various audio recordings which were placed before the court.
76. Ld. Senior PP has further pointed out to the deposition of PW5 dated 05.12.2022 whereby the said witness has stated that he was informed about the proposed trap proceedings in respect of complaint that a Constable of Delhi Police has demanded bribe for a sum of Rs.1 Lakh on behalf of SHO and a mobile phone from the complainant. Ld. Senior PP has also argued that the said witness also proved on record the memorandum regarding the pre-trap proceedings as Ex. PW5/A (collectively).
77. Ld. Senior PP has further argued that PW5 has stated that after apprehending the accused, complainant confirmed the identity of person whom the bribe amount was handed over and also that PW5 alongwith other independent witness tallied the serial numbers and denomination of the recovered currency notes and also that all the washes of both hands, pant and jacket turned pink into colour which confirms the recovery of the tainted trap money from the possession of the accused and thereby acceptance of bribe amount by accused.
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78. Ld. Senior PP has also pointed out that the fact about the CBI seal i.e. PW5/Article 22 which was used in the proceedings being handed over to PW5 by the CBI officials has been told by the said witness in his deposition before the court which proves that the case property could not be tampered.
79. So far as the denomination of the currency notes produced by the complainant are concerned, although, the complainant has stated that the same were in the denomination of Rs.500/- but other witnesses have confirmed that those were Rs.2,000/- notes.
80. Ld. Senior PP has argued in respect of recovery that although the complainant has stated that the said currency notes (trap money) were kept in the room of the accused but it does not make any difference if the notes were handed over or kept on the table in the room, but it is the fact that the same were recovered from the pocket of the accused which raises a question as to when accused did not accept the same then how they were found in the possession of accused. Ld. Senior PP has also pointed out to the report of the expert witness which proves presence of phenolphthalein powder in the exhibits sent by the CBI for chemical examination. Thus, the circumstantial evidence as well as direct evidence produced by the prosecution answers the above (Niyay Bindu) Page No. 49 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) question categorically that the accused had accepted the bribe amount from complainant and therefore, the same were recovered from his possession.
81. Ld. Sr. PP has argued that the quality of evidence is more important than quantity of evidence. This is also submitted by Ld. Senior PP when the evidence of CBI officials inspires confidence, then it has to be considered trustworthy and can be relied upon by the court.
82. Ld. Senior PP has further argued that as per various witnesses including complainant himself, the complainant was instructed by the CBI officials to give the pre-decided signal after the completion of transaction of the handing over the trap money to the accused is completed and when the complainant gives the said signal/gesture, it means that the transaction has been completed and also that it has come in the evidence of PW5 that the complainant confirmed by giving pre-decided signal about handing over the bribe amount to the accused after coming out.
83. Ld. Senior PP has further argued that it is clear from the chief examination of PW2 dated 14.03.2022 that his narration of the events during verification proceedings has been recorded therein in the memory card Q-2. Ld. Senior PP has also pointed out that besides PW2, PW4 and PW15 have also identified the (Niyay Bindu) Page No. 50 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) voice of the accused from various audio files which were played before the court during their depositions. Ld. Senior PP has also pointed out to the audio file no.1619 contained in Q-1 wherein the conversation refers to the talks about meeting by the complainant and the accused. Ld. Senior PP has further pointed to audio file no.1111 contained in Q-2 where there is a reference of the complainant in respect of the arrangement of money which confirms the demand of accused. He also pointed out to audio file no.1641 contained in Q-3 wherein the connection between both accused and complainant is proved and they seem to be maintaining a proximity between them.
84. Ld. Sr. PP has further pointed out to the audio file no.1701 contained in Q-4 wherein both the complainant and accused are talking to each other and there seems to be no hurry and no fear to the complainant as the complainant has deposed in his evidence.
85. Ld. Senior PP has further argued that all the ingredients that is demand, acceptance and recovery stand proved on the basis of above mentioned evidence and it has also been established that all the articles were kept intact and sealed and there is no probability of any tampering.
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86. On the basis of these arguments, it is submitted by Ld. PP for the CBI that with the help of all the prosecution witnesses, the prosecution has been able to successfully establish the case against the accused beyond reasonable doubt in respect of demand, acceptance and recovery and that is why accused is liable to be convicted accordingly.
ARGUMENTS OF ACCUSED
87. It is argued on behalf of accused by the Ld. Counsel that prosecution is relying upon the complaint Ex.PW2/A but the said complaint has been denied by the complainant himself which is sufficient to disprove the case of prosecution. Ld. Counsel has also argued that the complainant himself is a habitual offender and he has told the accused in the conversations that a case was going on against him U/s 308 IPC which shows the conduct of complainant. It is strongly argued by the Ld. Counsel that not even a single word has been uttered by the accused in respect of the alleged demand and even the demanded amount is not certain and there are contradictions in the date, time and place of demand.
88. Ld. Counsel has further argued that there are number of inconsistencies in the deposition of PW3 and that PW3 as well as PW5 both have claimed that CBI seal was in their possession. It is further argued by Ld. Counsel that both PW2 and PW3 could (Niyay Bindu) Page No. 52 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) not prove verification as only these two witnesses were sent for verification and hence, the story of CBI has not been proved by their deposition. It is further argued that due to weak evidence which is even contradictory, the demand could not be proved as the oral testimony is the primary evidence which could not prove demand in the present case.
89. Ld. Counsel has further argued that so far as the acceptance is concerned, except PW2 who is the only witness of acceptance, no-one saw the transaction as independent witness did not enter the room of accused and PW2 neither gave the amount to the accused nor the accused took the same in his hand.
90. Ld. Counsel has further argued that the recovery could also not be proved by the prosecution because there are substantial contradictions in the evidence produced before the court. This is pointed out by the Ld. Counsel that PW3 has deposed that he recovered the trap money from the pocket of the other person and also that CBI has concealed the presence of the other person who has been mentioned by many PWs. Ld. Counsel has also pointed out the contradiction in respect of proceeding of recovery of trap money and hand washes. Ld. Counsel has pointed out that as per deposition of PW2, he was not present at the time of recovery. Ld. Counsel has further argued that PW2 and PW3 have deposed that a liquid from a glass bottle was (Niyay Bindu) Page No. 53 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) poured into the vessel in which the hand washes were taken and PW3 talks about test tubes instead of glass bottles and all these depositions are in contradiction of the contents of the charge- sheet.
91. Ld. Counsel has further argued that the site plan produced and relied upon by the CBI is also a fake document because there is no information or mentioning of the spots with respect to the proceedings of apprehension of accused, hand washes and recovery spots, which proves the prosecution story to be a false one. On this aspect, Ld. Counsel has relied upon Shingara Singh Vs. State of Haryana & Anr. (Appeal (Crl.) 682- 683 of 1996) and Vijay Singh Vs. State of MP whereby stating that this lacuna in the site plan, relied upon by the prosecution, casts a doubt upon story of prosecution and the same makes the accused entitled for benefit of doubt. Ld. Counsel has further argued that the complaint and verification proceedings are contrary to each other and failed to establish the allegation of demand against the accused. Ld. Counsel has pointed out that in the given case, IO is a member of trap team who cannot be so and hence, the whole investigation proceedings gets vitiated.
92. Ld. Counsel has further argued that the sample voice of the accused was taken at PS and not separately at CBI office as claimed by the prosecution. Ld. Counsel has further argued that (Niyay Bindu) Page No. 54 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) in his deposition PW5 has stated that when he accompanied the complainant to the room of the accused, the accused stopped him outside but no such conversation is available in the transcripts.
93. Ld. Counsel has vehemently argued that prosecution has heavily relied upon the CFSL report in respect of the conversations recorded during the investigation but the same are inadmissible for the reason that the words picked by CFSL from the voice of accused are pertaining to the conversation which took place during the verification of proceedings and the same is against the law and guidelines set by the Hon'ble Supreme Court.
94. Ld. Counsel has further argued that none of the PWs have stated anything about depositing case property at malkhana nor any Malkhana Incharge has been examined in this regard and hence, the important link evidence is missing in the present case. It is further pointed out by the Ld. Counsel that the seal number of the CBI seal used in all the proceedings has been nowhere mentioned in the documents which shows failure of the prosecution to rule out tampering in the said documents and articles which were collected during the investigation. In this regard, Ld. Counsel has relied upon the following citations:
1. Jahan Singh Vs. CBI The State 2021 (1) JCC 35
2. Rajinder Kumar Narang Vs. State 2014 (2) JCC 10853. State of Rajasthan Vs. Daulat Ram 1980 SC Cases (Cri.) 683 (Niyay Bindu) Page No. 55 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
4. Valsala Vs. State of Kerala Crl. Appeal. No.576 of 1991
95. Ld. Counsel has further argued that the CFSL lab who has given reports in the present case is not competent for want of notification U/s 79-A of Information Technology Act and that is why, the said reports are not at all admissible in evidence against the accused.
96. Ld. Counsel has submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and hence benefit of doubt has to be given to the accused because as per the criminal jurisprudence, all the acquisitions are to be proved by the prosecution beyond reasonable doubt whereby citing Ashish Batham Vs. State of Madhya Pradesh, Appeal (Crl.) 148 of 2002.
97. Besides the same, Ld. Counsel has also relied upon some other citations mentioned as below:
1. Nepal Singh Rawal Vs. CBI 2011 (4) CC Cases (HC) 41
2. Jai Narayan Vs. State Crl. A. No.259/2007
3. Roshan Lal Saini & Anr. Vs. CBI 2011 (1) JCC 102
4. P. Parasurami Reddy Vs. State of Andhra Pradesh (2011) 12 SCC 294
5. Banarsi Dass Vs. State of Haryana II (2010) DLT (Crl.) 211 (SC) (Niyay Bindu) Page No. 56 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
6. State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede 2009 (4) CC Cases (SC) 31
7. Soundarajan Vs. State Rep. By the Inspector of Police, Vigilance Anticorruption Dindigul Crl. Appeal No.1592 of 2022
8. Jagtar Singh Vs. State of Punjab 2023 LiveLaw (SC) 232
9. A. Subair Vs. State of Kerala Crl. Appeal No.639 of 2004 REBUTTAL BY THE CBI
98. Ld. Sr. PP for CBI has argued at length in rebuttal of the arguments addressed by the Ld. Defence Counsel whereby clarifying many aspects which have been produced or contended on behalf of the accused.
CASE LAWS CITED BY CBI
99. Ld. Sr. PP for the CBI has relied upon the following judgments:
1.R. M. Malkani Vs. State of Maharashtra (1973) AIR (SC) 1572.Neeraj Dutta Vs State (Government of GCT of Delhi) 2022 Online SC 1724
3.State of Maharashtra Vs. Damu (2000) SC
4.State of UP Vs. Zakaullah (1998 Crl.L. J. SC 863)
5.Hazari Lal Vs. Delhi Administration (1980 Crl.L.J.580)
6.Vinod Kumar Vs. State of Punjab (2015 (2) Crl.L.J. SC 1442)
7.State Vs. A. Parthipan (2006 Cr.L.J. 4772 SC) (Niyay Bindu) Page No. 57 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
100. I have heard the contentions of both the parties and perused the material available on record and heard the relevant conversations as well. This is hereby noted that the arguments of Ld. Counsel as well as CBI shall be dealt with at length as per the context in the upcoming findings of the court.
APPRECIATION OF EVIDENCE AS WELL AS ARGUMENTS
101. Before I look into the evidence and appreciate the arguments, it is appropriate to refer to the requirements to establish a case under Section 7 of the Act under which the charge has been framed against the accused in the present case. Ingredients of Section 7 of PC Act, 1988 (after amendment in 2018) The ingredients of offence defined under Section 7 of the Act can be summarized in the following manner :-
1.1 The accused must be working as public servant.
1.2 The accused obtains or accepts or attempts to obtain an undue advantage from the other person directly or through a third party.
1.3 The undue advantage is accepted or obtained or attempted to be obtained, with the intention to perform or cause performance of public duty improperly or dishonestly, or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or 1.4 The undue advantage is accepted or obtained or attempted to be obtained, as a reward for the improper or dishonest performance of a public duty or for (Niyay Bindu) Page No. 58 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) forbearing to perform such duty either by himself or another public servant; or 1.5 The accused performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty, in anticipation of or in consequence of accepting an undue advantage from any person directly or through a third party.
INVOLVEMENT OF PUBLIC SERVANT
102. As far as first requirement U/s 7 of Prevention of Corruption Act is concerned, there is no dispute to the fact that at the time of commission of alleged offence, accused was working as Constable in Delhi Police and was posted at Police Station Sarita Vihar, New Delhi and hence, he was public servant at the relevant time.
DEMAND
103. Next factor is element of demand. For the purpose of second requirement, prosecution has to establish that there was demand from the side of accused regarding illegal gratification and he accepted or obtained or agreed to accept or attempted to obtain such gratification from the complainant PW2 Mohd. Naeem. In respect of demand, the accused has raised various contentions which are taken up in the following manner:
(i) PROVING THE COMPLAINT ON RECORD (Niyay Bindu) Page No. 59 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
104. Defence has challenged the evidence of prosecution, to say that prosecution failed to prove demand for gratification. As per argument of defence, PW2 i.e. complainant and PW3 i.e. independent witness were the only witness of the prosecution to prove demand but they have failed to prove the same because the prosecution is relying upon the complaint Ex.PW2/A but the complainant himself has denied the same and also that the deposition of PW2, the complainant as well as that of PW3, independent witness Rajesh Kumar Vimal were neither free from contradictions nor did they come up with concrete particulars of such demand. Per contra, it is argued by Ld. Sr. PP on behalf of CBI that during the whole deposition of the complainant, he has been very much firm on the point of demand and that he is also the direct evidence in respect of acceptance which stands corroborated with the help of the recorded conversations and other circumstantial evidence, therefore, the contentions of the accused in this regard are baseless. Ld. Sr. PP has further argued that the complainant has proved the fact as to why he filed the complaint and prosecution witnesses including the Verification Officer/PW4 have proved the fact that accused demanded a sum of Rs.1 Lakh alongwith a mobile phone as bribe/illegal gratification from the complainant and also that complaint has been proved on record as Ex.PW2/A. (Niyay Bindu) Page No. 60 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
105. In order to create a balance between the rival contentions, the court may look into guidelines set by Hon'ble Supreme Court in respect of demand.
106. In the case of "B. Jayaraj v State of A.P, 2014 (2) RCR (Cr.) 410 SC", Supreme Court made following observations:-
"In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe."
107. It has been held by Hon'ble Apex Court in P. Satyanarayana Murthy Vs The District Inspector of Police, State of A.P. (2015) SCC 152, while placing reliance on B. Jayaraj (supra), that mere possession and recovery of currency notes from the accused without proof of demand would not establish an offence u/s 7 of the P.C. Act. This is because proof of demand is a sine qua non or an indispensable essentiality and a mandate for an offence U/s 7 of the Act.
108. Recently, the Hon'ble Supreme Court of India clarifying the relevant provision of law U/s 7 of P.C. Act in (Niyay Bindu) Page No. 61 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) Neeraj Dutta Vs State (Government of GCT of Delhi) (2023) 4 Supreme Court Cases 731 held that:
"88. What emerges from the discussion is summarized as under:
88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of accused public servant under Sections 7 and 13(1)
(d)(i) and (ii) of the Act.
88.2. (b) In order to bring home the guilt of accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. 88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-
giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) ..........
(iii) .........Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an (Niyay Bindu) Page No. 62 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) offence. ..........
88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stand.
88.6. (f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
88.7. (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law".
109. The above mentioned observations of Hon'ble Supreme Court, make it clear that a case under Section 7 of the Act can lie even in absence of evidence of demand, if there is (Niyay Bindu) Page No. 63 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) evidence to show that accused voluntarily accepted the money knowing it to be a bribe. In this respect, presumption under Section 20 of the Act also comes into the picture, according to which on proving the factum of gratification being accepted or obtained by the accused public servant, it shall be presumed that he accepted or obtained it as a motive or reward as mentioned in Section 7 of the Act. Thus, in such situation the onus shifts upon the accused to justify the purpose of receiving the gratification. The gratification/undue advantage would be something, which is not a part of legal remuneration for the public servant.
110. In the present case, the complainant as PW2 has deposed before the court that when, on the insistence of accused, the complainant visited the SHO and while SHO was talking to him, accused Suman Prakash was very much present in the room whereby giving gesture of counting money and also that, when the complainant asked the accused as to what did he want, accused Suman Prakash wrote the amount of Rs.3 Lakhs on a piece of paper saying that SHO wants this much amount and thereafter, the complainant filed the present complaint.
111. At this stage, the court has to consider that accused Suman Prakash has not disputed the fact that the complaint was filed by the complainant with CBI or that the accused or SHO did not meet complainant in respect of an FIR/criminal case nor the (Niyay Bindu) Page No. 64 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) accused has clarified as to under what circumstances, the complainant went to meet both of them. Moreover, the accused has also failed to deny the fact that he called the complainant in respect of the demand even if the same was raised on behalf of the concerned SHO.
112. This background narrated by the complainant himself is sufficient to establish as to why the present complaint Ex.PW2/A was filed with the CBI by the complainant.
113. Ld. Counsel has also raised an objection that the main allegations have been leveled against SHO of concerned Police Station by the complainant but no verification has been conducted in respect of the said SHO, which casts a doubt upon the investigation of the prosecution. However, it is clarified from the investigation as well as the submissions made on behalf of CBI that since the SHO was not in contact of complainant and therefore, not having any conversation with the complainant, no verification could have been conducted against him. It has also come on record that after scrutiny of the screen shots of WhatsApp chats as well as other data contained in the mobile phone of SHO, nothing incriminating surfaced against him that is why no investigation was required to be conducted against him. Moreover, the complainant has also not deposed that the SHO talked to him in respect of the alleged demand at any point of (Niyay Bindu) Page No. 65 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) time. These circumstances are sufficient to refute the contention of the accused in respect of the concerned SHO.
114. In view of the above discussion, it is very much clear that the purpose as well as factum of filing the complaint by the complainant has been duly proved with the help of deposition of different prosecution witnesses and the objection/contention raised on behalf of accused has been rendered as forceless.
(ii) PROVING THE VERIFICATION PROCEEDINGS
115. In respect of the verification proceedings, a number of contentions have been raised by the Ld. Counsel whereby stating that both complainant as PW2 and independent witness as PW3 have failed to prove the verification proceedings. Ld. Defence Counsel has emphasized that although, PW3 was ordered to accompany and overhear the conversation of complainant with the suspect officer during the verification proceedings but he could not accompany the complainant and that is why, neither he could overhear nor watch the incident which actually took place inside the Police Post Jasola and that is why, the prosecution has no witness of the spot of verification, benefit of which shall be given to the accused.
116. Ld. Counsel has further argued that there are inconsistencies in the prosecution depositions in respect of (Niyay Bindu) Page No. 66 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) amount, time and place of demand. Ld. Defence Counsel has pointed out that on one occasion, the place of demand is stated to be PS Sarita Vihar and on another occasion, the same is stated to be Police Post Jasola and also, that the amount was once stated by the complainant to be a sum of Rs.3 Lakhs and later on, the said amount was changed to be a sum of Rs.1 Lakh. Ld. Counsel has also pointed out that according to PW2, demand was raised on 19.01.2021 while PW4 stated that no verification could take place on 19.01.2021 and PW3 narrated the incident of (dated) 20.01.2021 as the incident of 18.01.2021.
117. In response to these contentions, Ld. Sr. PP has argued that prosecution evidence is required to be looked into as a whole and after going through the deposition of the verification officer as well as the audio recordings which were done during the verification proceedings, the incidents, are being clarified and established as a whole.
118. Ld. Sr. PP has further submitted that these minor discrepancies are not sufficient to form a ground for defence for the accused and also that PW2 and PW3 have already been declared as hostile witnesses who have not completely supported the case of prosecution, However, their evidence is important to establish certain aspects in favour of the prosecution that is why the same cannot be outrightly discarded.
(Niyay Bindu) Page No. 67 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
119. Ld. Sr. PP has further submitted that even after resiling of the complainant or independent witness from their previous testimony, they are still relevant and considerable to prove the case. Ld. Sr. PP for CBI has stated that it has been held in State of UP Vs. Zakaullah (1998 Crl.L.J.SC 863) that the evidence of TLO can be relied upon without corroboration and cannot be discarded being interested witness and the same has also been laid down in Hazari Lal Vs. Delhi Administration (1980 Crl.L.J.580) and State, Govt. of NCT of Delhi Vs. Sunil & Anr. (Appeal (crl.) 1119-1120 1998). Ld. Sr. PP has also referred to Vinod Kumar Vs. State of Punjab (2015 (2) Crl.L.J. SC 1442) wherein it was held that trap case does not collapse merely because complainant has turned hostile, if an accused has failed to establish his defence and rebut the presumption.
120. In order to settle these rival contentions, we may be guided by the precedents in the following manner:
121. In Bhagwan Singh Vs. State of Haryana, AIR 1976 SC 202, the Hon'ble Supreme Court held that merely because the court gives permission to prosecutor to examine his own witness describing him as hostile, does not completely efface his evidence. The evidence remains admissible in trial and there is no legal bar to base conviction upon the testimony of such a witness.
(Niyay Bindu) Page No. 68 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
122. It is laid down by Hon'ble Apex Court in the recent judgment, Neeraj Dutta (supra) referring to Indian Evidence Act, 1872 section 154-
"the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence."
123. In view of the above guidelines, it is clarified that PW2 (complainant) and PW3 (independent witness), have deposed a lot in favour of the prosecution, although, on certain points, they have been declared as hostile but still their depositions are relevant to prove the important aspects of investigation.
124. After considering the rival contentions of both the parties, the most important aspect for the court to consider is whether the demand has been raised which is the first and foremost ingredient to establish the case against the accused and also to take into account the effect of above mentioned inconsistencies upon the story of prosecution. In the present case, as Ld. Sr. PP has already pointed out that the complainant, (Niyay Bindu) Page No. 69 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) although, has not completely supported the case of prosecution, still he has been consistently firm on the aspect of demand and this fact cannot be denied. He as PW2 has also proved various stages of the said proceedings. It cannot be ignored that PW2 has deposed about the incidence of 18.01.2021, 19.01.2021 and 20.01.2021 respectively and his narration which was given to verification officer during the verification proceeding dated 20.01.2021, was also narrated by the said verification officer as PW4 before the court and the audio recordings which were recorded during the verification proceedings have also corroborated this narration. Secondly, this is also correct that the complainant as PW2 and the independent witness as PW3 have deviated to certain extent in respect of date and time of the demand, but they have supported the factum of raising demand. Despite minor contradictions in the deposition of PW3 due to lack of memory, it is established that PW3 joined the proceedings of each day of the verification as he has identified various documents prepared during the verification proceedings and also his signatures on the same. He has supported the story of prosecution to the extent of the verification proceedings, preparation of various documents, audio recordings and also the incident of raising demand by the accused from the complainant.
125. Besides these two witnesses, the verification officer/PW4 has specifically mentioned the date wise incidents as (Niyay Bindu) Page No. 70 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) in the present case, verification proceeding was firstly to be done on 18.01.2021 but as it could not take place, so the same was postponed for the next day, and when on 19.01.2021, the accused was not available to meet the complainant, the same was again fixed for next day and thereafter, on 20.01.2021, the verification could be completed when the complainant met the accused/suspect official. There is no ground for the court to raise a doubt against the submissions of the said PW4 i.e. Verification Officer as even the audio recordings of the given dates also corroborate the submissions/deposition of the said witness and the said audio recordings and deposition of PW4 are corroborating the story of prosecution itself. On this aspect, we may be guided by State of UP Vs. Zakaullah (Supra). This is also worth noting that all the prosecution witnesses who have been a part of verification proceedings i.e. PW2 (complainant), PW3 (Independent witness) and PW4 (verification officer), have identified their signatures on the verification memos dated 18.01.2021 Ex.PW3/A, 19.01.2021 Ex.PW3/B and 20.01.2021 Ex.PW4/A.
126. So far as the amount of demand is concerned, although, it has come up in the deposition of PW2 that initially, a demand of Rs.3 Lakhs was raised by the accused but as per the record, the said amount is reflecting as Rs.2 Lakhs which is also mentioned in the complaint ExPW2/A, although, the same was (Niyay Bindu) Page No. 71 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) stated to be on behalf of SHO and a negotiation took place between the complainant/PW2 and the accused on different occasions which is reflecting in the audio recordings, recorded during various proceedings, on the insistence of the complainant upon the accused that he was unable to arrange such a big amount, the demanded amount was finally settled to the tune of Rs.1 Lakh. In the like manner, the contention raised by the Ld. Defence Counsel in respect of difference in time of demand being stated by different witnesses, can also not be of much support to the defence because time of demand can easily be confirmed from the recorded conversations which cannot be wrong and that the same are supporting the story of the prosecution. Now, another point, to be clarified, is that Police Post Jasola comes under PS Sarita Vihar and as it is reflecting from the recorded conversations and different other documents/memos prepared during the investigation that sometimes, the accused was present at the Police Post and another time, he was present in the Police Station itself and no inference can be drawn from the contradictions in the deposition of different witnesses that the demand was not actually raised by the accused and such minor inconsistency regarding the place of demand is not going to put adverse impact upon the case of the prosecution.
127. In addition to the same, this is also important that from the CDRs of the mobile numbers of the complainant and (Niyay Bindu) Page No. 72 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) accused, the location of these mobiles is established and this fact is confirmed that the specified mobile phones/numbers were actually being used in the conversations which took place between the two persons and which are being recorded and played during the deposition of different prosecution witnesses. Ld. Counsel for accused has raised an objection in respect of said CDRs whereby stating that the same are not being supported with a proper Certificate U/s 65-B of Indian Evidence Act, 1872. In this regard, it can be considered that the said CDR is supported with a Certificate U/s 65-B Indian Evidence Act,1978 in respect of the computerized printouts of the CDRs and even if, no such certificate is furnished, the document cannot be inadmissible until and unless the accused gives some cogent reason or evidence to disbelieve the same or to the effect as to how the said document is incorrect or otherwise he proves that the said Certificate is incorrect or not valid. In absence of any such evidence on behalf of accused, this argument is forceless.
(iii) AUDIO RECORDINGS AS CORROBORATIVE EVIDENCE
128. After considering the oral deposition of the witnesses, we are having the corroborative evidence of recorded conversations as well. The recorded conversations between the parties reflect the intent of each of the speaker as well as the sense in which they are conversing with each other and the same (Niyay Bindu) Page No. 73 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) shall be discussed in the forthcoming paragraphs. In the said conversations, the complainant is apparently negotiating the demand amount to lower the same. I had personally heard recordings in all the memory cards i.e. Q1, Q2, Q3 and Q4. Some extracts of the same are reproduced herein as per the context for reference.
129. First of all, as also pointed out by the Ld. Sr. PP, this is considerable that there are certain specific words/phrases which establish the personal relationship/connection between the complainant and accused and the same are as under :
(File no.210120_1217 in Q3) Accused- हां भाई Complainant- सुमन भाई नमस्कार कहां हो सर Accused- मैं हूं यार यही पे बताओ ...................
(File no.210120_1535 in Q3)
Complainant- जी सर
Accused- कहाँ हो सेठ जी
...................
(File no.210120_1629 in Q3)
Complainant जी सर
Accused हां चौधरी कहाँ है
(Niyay Bindu)
Page No. 74 of 132 Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT-11-000222-2021
CBI No. 27/2021
CBI v. Suman @ Suman Prakash
RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) ...................
(File no.210120_1641 in Q3)
Accused आओ आओ गुरु दीन ए इलाही आओ
Complainant हां हां, ये मेरे बहनोई के दोस्त हैं
...........................
Accused- मेरे बेटे का बर्थडे था मैंने कहा चलो भैया
Complainant- दावत हमें भी दे देते, दावत हमें भी दे
देते
Accused- दावत तो देंगे भाई, तुझे दावत क्यों नहीं
देंगे
.....................
....................
Complainant ------गाली---- बताओ मेरा, तुम्हें तो
सारी पता है ए टू जेड का मेरा क्या रोल
है
Accused तेरी सारी प्राब्लम समझता हूं
......................
...................
Accused- कोई बात नहीं दूसरा दारु पिला दे तो
आज
Complainant- हां बिल्कु ल कोई बात नहीं
..................
(Niyay Bindu)
Page No. 75 of 132 Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT-11-000222-2021
CBI No. 27/2021
CBI v. Suman @ Suman Prakash
RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
130. After listening the above conversation, it is established from the underlined words/phrases that the complainant and accused are sharing a closeness and are well acquainted with the circumstances of each other.
131. Now onwards, the conversations in respect of the transactions are taken up for discussion. From the transcription of Q2 in file no.210119_1111, there is clear reference that the two speakers are talking about some money transactions:
Complainant- सुमन भाई नमस्कार Accused- नमस्कार मैं भी फोन बंद कर लूंगा ना तो मुसीबत हो जायेगी बहुत तगडे़ वाली Complainant- सर मैं क्या मैं करूं कल असल में मैं आपके इंतजाम में लगा पड़ा था पैसे के चक्कर में गया था यकीन मानो वो चाचा ने दे दी गोली फिर मैं किसी और के पास गया उसने पैसे दिए कम तो इसलिए फिर मैं शरम के मारे मैंने फोन बंद कर लिया रात को Accused- ऐ यार ऐसे---- कोई Complainant- सुमन जी तुम्हारी कसम देखो पैसे का काम पैसे से चलता है इतने पैसों का इंतजाम करना एक लाख रूपया चाचा से मांगे मैं क्या मुंह से कहूं 50 हजार देकर भाग गया चाचा मेरा मेरे मुंह से (Niyay Bindu) Page No. 76 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) गाली और निकलेगी अभी Accused- अरे यार ऐसे थोडी़ होता है Complainant कै से करूं नहीं भई मैंने तो आपको जुबान करी है Accused कोई बात नहीं टेंशन ना ले Complainant देखो मेरी बात सुनो मैंने जुबान करी मैं जुबान आज पूरी करूं गा आपकी Accused- अरे कोई बात नहीं ---- कोई दिक्कत नहीं है Complainant- सुमन जी मेरी बात सुनो मैं आपकी आज जुबान पूरी करूं गा मैं आऊं गा आपके पास अब आप कहाँ हो ये बताओ Accused- मैं आज घर पे हूं आज नहीं आऊं गा मैं कल मिलूंगा फिर आपसे Complainant कल आप किस टाइम मिलोगे फिर मैं इंतजाम पैसे का करके फिर मैं जभी मैं तुम्हें फोन करूं गा रोज रोज साले मेरा दिमाग खराब हो गया मैं तो परेशान हो गया हूं .............................
132. From the above conversation, it is revealed that the accused is imposing himself upon the complainant whereby stating "मैं भी फोन बंद कर लूंगा ना तो मुसीबत हो जायेगी बहुत तगडे़ वाली"
which shows that he is annoyed with the complainant for (Niyay Bindu) Page No. 77 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) switching off his mobile as he is again and again contacting the complainant in respect of the issue involved. This is also apparent that again and again, the complainant is talking about his efforts in arrangement of money and he is also giving an assurance to the accused that he shall be true to his words meaning thereby that he shall keep his promise or commitment which he has already done to the accused and this commitment shall be clarified through further conversations.
(File no.210120_1641 in Q3) .......................
Complainant- हां सतीश भाटी का भाई----वो क्यों
बुला रहा मुझको
Accused- वो इसलिए बुला रहा-----
Complainant- अब क्या आफत आ गई
Accused- ये हो जायेगा तो वो भी चुप बैठ
जायेगा----
Complainant- पैसों के लिए
Accused- और---एसएचओ जब----अस्पष्ट
Complainant- सर एक बात तो बताओ छोटी सी मगर
कल से मुझे सारी रात भर नींद नहीं
आयी---गाली----बहुत ज्यादा परेशान
हुआ मैं, उस दिन एसएचओ साहब से
बात हुई थी आपके के सामने अब उसके
बाद क्या आपसे मेरी बात हो गई आप
हो बीच में भाटी जी घुस गए कल और
(Niyay Bindu)
Page No. 78 of 132 Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT-11-000222-2021
CBI No. 27/2021
CBI v. Suman @ Suman Prakash
RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) कोई और खडा़ हो जायेगा किस किस को पैसा दूंगा तो - --हां .........................
133. In the above conversation, it is apparent that the complainant has already promised the accused/other speaker in respect of some payment and another person is also calling him up in respect of the same issue and complainant is showing his grievance in this regard through his words, "आपसे मेरी बात हो गई आप हो बीच में भाटी जी घुस गए कल और कोई और खडा़ हो जायेगा किस किस को पैसा दूंगा". It also shows apprehension of the complainant that some other person may also get involved in this issue.
134. Besides the amount of Rs.1 Lakh, the accused is also demanding a smart mobile phone from the accused which is very much clear in the following conversation contained in Q3 in file no.210120_1641:
.......................
Complainant- सुन तो लो मेरी बात भाई हाथ जोड़ के रिक्वेस्ट है। एक लाख रूपये तो वो हो गया तुम्हारा क्या हो गया कै सा है तुम्हारा फोन हो गया।
Accused- - - गाली----
Complainant- एक रिक्वेस्ट है एक रिक्वेस्ट है हां बस वो फोन है जो है ना उसी में एडजेस्ट (Niyay Bindu) Page No. 79 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) कर ले, बस यहीं तुझसे कहना चाह रहा था मैं Accused- ज्यादा, सुन मैं बताता हूं तेरे को ज्यादा बर्डन नहीं डालना चाहता मैं Complainant- हां बस हां मैं मरा हुआ आदमी यार कसम से खुदा की Accused- ऐसे 10-12 हजार का तो Complainant- एं-----
Accused- 10-12 हजार तक तो आ सकता है
Complainant- 10-12 हजार कौन सा वाला
Accused- कोई भी सैमसंग - - किसी का यार
........................
135. It is revealed in the above conversations that a reference is being clearly made by the complainant in respect of Rs.1 Lakh as well as a mobile phone as being demanded by the accused and these conversations are sufficient to establish the understanding between accused and the complainant in respect of intended transaction and the demanded amount.
136. Now coming up to the purpose of transaction as referred to in the above conversation, the same is reflected from the following words:
(File no.210119_1111 in Q2) ...............
(Niyay Bindu) Page No. 80 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) Accused- अरे कोई नहीं है मामला--- गाली---
कौन से कोई तोप चल रही है कहीं Complainant- अरे एसएचओ तो उस दिन कै से कै से कह रहा था कि डाल दूंगा अंदर --- यार तुम्हें तो सब पता ही है तुम्हारे सामने ही Accused- अरे मेरे भाई कोई दिक्कत नहीं है तू मेरे से कल---- मैं एक बार आप से कॉन्टेक्ट कर लूंगा फिर मिल लेना मेरे से ठीक है ना ...........................
(File no.210120_1641 in Q3) ........................... Complainant- ये बात तो खैर है मैं आपसे ये कहने आया था एक लाख रूपया तुम में अब जाऊं गा सुनो, रात को जाऊं गा, दादी आने देगी तो---दादी बुढ़िया है वो बोल आया, दादी या तो निकलूंगा सुबह सुबह नहीं तो फिर रात को जाऊं गा कल एक लाख रूपया कल दिन में किस टाइम फ्री हो ये बता दो और इसके बाद सर सुनो इसके बाद सरिता विहार थाने से फोन ना आ जाये किसी का आप जानो पहले आप भाटी जी से बात करो (Niyay Bindu) Page No. 81 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) ........................... Accused- मैं अभी वहीं थाने में जाके बात करूं गा फोन में नहीं करूं गा उससे Complainant थाने में जाके थाने में जाके बात करके आप मुझे बता देना प्लीज क्लीयर बात। साहब से सर सुनो एसएचओ साहब से भी कह देना के बस जी अब नईम का पीछा छोड़ दे Accused- 50 तो दे दे मैं एसएचओ को --- अस्पष्ट Complainant- सारे ले लियो भाई क्यों दिक्कत खा रहा है जब मैं वादा करके जा रहा हूं तुमसे ज्यादा परेशान हूं पता है क्यों मैं बताऊं । मेरा पिंड छू टे खाली, खाली में फं सा हूं बिना मतलब के मेरा लेना नहीं यार तुम्हें ना पता हो तुम कसम धर्म से ...........................
137. The above conversations were recorded during the verification proceedings in the DVR lying in the pocket of the complainant and from the highlighted portions of the conversation, it is very much apparent that in various ways, the speakers are talking about certain transaction which has not been directly referred to. The aforesaid conversation shows that accused was aware of the ongoing transaction with the complainant as he is not raising any question in these contexts.
(Niyay Bindu) Page No. 82 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
138. In furtherance of these transactions, when the complainant assures the accused that he shall be making payment tomorrow that is the day of final trap, the accused also gives assurance to the complainant in Q3 in file no.210120_1641 in the following words:
Accused- भाटी का फोन नहीं आयेगा तेरे पास अब Complainant- किसी का भी ना आये यार भाई मेहरबानी करियो
139. Thereafter, the meeting was fixed for the next day in the following manner:
(File no. 210120_1641 in Q3) ................
Complainant- ये बता दे मुझे कि मैं 5-6 बजे के बाद
मिलूंगा
Accused- हां 5 बजे 5 बजे
Complainant- 5 बजे बस ठीक है
140. Although an argument has been raised on behalf of the accused that the demand is not apparent from the words of the accused from the conversations, but it must be borne in mind that there cannot be a fixed formula or manner to make demand of bribe. Demand of bribe may not always be in very specific form.
Therefore, the court has to raise inference on the basis of context of conversations between parties and the kind of response being (Niyay Bindu) Page No. 83 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) given by the accused. Hon'ble Supreme Court also guides us in respect of this inference in Neeraj Dutta (Supra). This is also considerable that any public servant, when he is acting with some motivation, is always very much conscious about the risk he is taking upon his head while being involved in such practices and an inference can easily be drawn that out of an apprehension, the accused or such public servant takes every kind of precaution against the said risk. The court is fortified in its opinion from the recorded conversations between the accused and complainant as it is reflecting from Q2 file no. 210119_1111 where the apprehension of the accused is very much clear and the relevant extract of the said conversation are given below:
..................
Complainant- अब तो एक रिक्वेस्ट है बस आप से अगर एक एक भी पूरे में काम चले न उपर वाले साहब से हाथ पैसे जोड़ के जैसे मर्जी करके उसको जुम्मे तक खत्म करा देना Accused- यार सुन सुन भई मेरे तू फोन पे जो न ज्यादा वो मत कर----
Complainant- अच्छा ले मैं काट रहा हूं फोन
Accused- -----अस्पष्ट
Complainant- अरे मैं तो ऐसी बात कभी करता नहीं
तुमसे मेरी बात सुनो मैं कभी आपसे
करता हूं--- मेरे फोन में रिकार्डिंग नहीं है (Niyay Bindu) Page No. 84 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) भाई Accused- भईया कु छना पता किसी का क्या है कहां है Complainant- चैक कर लियो भाई तू चैक कर लियो भाई Accused- कोई बात नहीं पता चला कि --- गाली नमाज पढ़ने गए रोजे़ गले पड़ गए ऐसा भी होता है भाई साहब ..........................
141. At one more occasion in file no.210120_1641 in Q3, the apprehension of the accused is apparent ---
...................
Accused- एक चीज़ --- तुम कहीं बोल तो नहीं देगा
किसी को
Complainant- भाई कै सी बात कर रहा है
Accused- तेरे मेरे बीच में रहेगा
Complainant- बिल्कु ल बीच में रहेगा
Accused- बस ठीक है
.....................
142. After hearing this conversation, an inference can easily be drawn that with the help of certain wordings, accused is trying to convince the complainant and the complainant is also giving assurance to the accused that he will not disclose the facts (Niyay Bindu) Page No. 85 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) about the intended transaction between them. So far as the apprehension or precaution of the accused is concerned, it has come up in the deposition of the complainant as PW2 before the court that when on one occasion, the complainant went to meet the SHO, the accused made gesture of counting money without uttering any word and on another occasion, the accused wrote the amount of demanded bribe on a piece of paper and shown to the complainant and both these incidents can be easily co-related with the above mentioned conversation where the accused seems to be alert and apprehensive of the risk involved in the transaction.
143. In one of the conversations with the complainant, accused informs the complainant that he himself has given an I- phone for a sum of Rs.1,22,000/- to an Officer whereby saying that for the purpose of completion of some task, all these things are being done under pressure.
(File no. 210120_1641 in Q3) ..................
Complainant- एक लाख रूपये का मोबाइल
Accused- अरे मेरे भाई । बस पूछो मत-----
Complainant- फोन तो करना है और करना क्या है
Accused- यहीं तो है। एक लाख 22 हजार का
फोन है। आई फोन
Complainant- किसको दिया
(Niyay Bindu)
Page No. 86 of 132 Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT-11-000222-2021
CBI No. 27/2021
CBI v. Suman @ Suman Prakash
RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) Accused- अफसर को Complainant- अफसर को रिश्वत आपने ओ तेरी Accused- क्या करें मजबूरी है कु छ काम करना है तो ऐसे काम निकालना पडे़गा ..........................
144. All these instances reflect that accused and complainant are co-operating with each other whereby carrying on their own personal interests. Thus, the court has no doubt at least in respect of demand of Rs.1 Lakh and one mobile phone made by accused prior to trap proceedings and bargaining to decrease the demanded amount and thereafter, accepting the said amount.
145. In view of the above discussion, no doubt remains in respect of alleged demand being made from the complainant by the accused and the arguments raised by Ld. Counsel for accused in respect of demand stand refuted.
TRAP PROCEEDINGS
146. For the purpose of acceptance, prosecution evidence is dependent upon testimony of PW2 (complainant), PW3 (independent witness), PW5 (independent witness) and PW14 (TLO) as well as the recorded conversations and the evidence of the CFSL expert PW9 who has been examined regarding the (Niyay Bindu) Page No. 87 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) chemical examination of different washes being taken during the trap proceedings. Besides the same, prosecution is also relying upon the testimony of PW16 Insp. Sandeep Kumar Tiwari, who is the IO of the case. So far as the trap proceeding is concerned, accused has not disputed the fact that CBI team alongwith complainant had reached PS Sarita Vihar on 21.01.2021 in the evening. He has also not disputed that he was apprehended by the CBI officers in the backyard of PS Sarita Vihar. However, the accused has disputed the evidence in respect of acceptance and his objections are hereby taken up for discussion:
(a) Evidence of acceptance of bribe
147. A very strong argument is being raised by the Ld. Counsel that there is no direct evidence of acceptance of bribe as the independent witness could not enter the room of the accused and PW2 (complainant), who is the only witness of acceptance, has deposed that he kept the bribe amount on table and came out without giving the bribe amount in the hand of the accused.
148. In order to clarify this contention, Ld. Sr. PP has submitted that although, PW2 has not supported the prosecution to the extent that he handed over the tainted amount in the hands of accused and the said witness was later on declared as hostile, but when the hand washes of accused were taken in the solution of sodium chloride with water, the same turned into pink and if (Niyay Bindu) Page No. 88 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) the accused did not accept the amount, how could his hands be smeared with phenolphthalein powder which made his hand washes to turn into pink.
149. Ld. Counsel for the accused has further argued that in his deposition, PW5 has stated that during the trap proceedings, the accused asked complainant to keep PW5 away and took the complainant privately into the building of PS Sarita Vihar but no such conversation is reflecting in the transcripts or the concerned audio recording. In response to this contention, it is pointed out by Ld. Sr. PP for CBI that PW5 has not stated anything as to what were the words actually spoken by the accused in this regard but he only narrated the incident and it is very much possible that the accused stopped the said witness (shadow witness) outside through gesture and took the complainant privately also through gesture only and it is also not required to say everything in the words because the audio recording cannot record gestures and that the incidents in the proceedings are only audiographed and not videographed.
150. In respect of the contention raised by the Ld. Defence Counsel, the submissions made on behalf of CBI are acceptable.
(Niyay Bindu) Page No. 89 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
151. Ld. Counsel for the accused has raised another contention that from the deposition of the complainant in the court, it is revealed that the complainant kept the currency notes on the table in the IO room where accused was present, "in a hurry". On the contrary, it is pointed out by Ld. Sr. PP that the conversation between the two persons is not reflecting any such hurry, because they are simply talking to each other for a moment, wherein the complainant has warned the accused that after that particular point of time, he (complainant) should not receive call from anyone. An inference can be drawn by the court from the same that complainant was talking about the complaint of Phulo Devi in respect of which, accused was again and again contacting the complainant and even some other police official was also bothering the complainant about the same. Now the promise of complainant to accused, about which the complainant has been referring to in the conversation already discussed above, may be conveniently co-related with this instance of giving money and an inference may be easily drawn that complainant is keeping his promise to the accused. The extracts of the said conversation are given as below:
(File no. 210121_1701 in Q4) ...........................
Accused- हां अब बता क्या
Complainant- सर नमस्ते
Accused- अरे छोड़ न कोई ना आ जा
Complainant- अरे सर ला आईओ के पास लायें---
(Niyay Bindu)
Page No. 90 of 132 Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi
CNR No. DLCT-11-000222-2021
CBI No. 27/2021
CBI v. Suman @ Suman Prakash
RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) अस्पष्ट Accused- इस बात से यकीन मानिये Complainant- एक लाख रुपये पूरे हैं और अब किसी का फोन मेरे पास नहीं आना चाहिए। मैं बहुत टॉर्चर हो गया देख। कभी साहब का आ जाये, इनका आ जाये भाई मैं मेंटल टॉर्चर हो गया हूं, फू लो के चक्कर में
---- गाली----करा कौन, भरे कौन Complainant- तेरी मेहरबानी, मोबाइल तुझे एक का दिन में दिला दूंगा Accused- कौन सी Complainant- वही 10-12 हजार का जो तू बता रहा है Accused- हां वही वाला Complainant- बटला हाउस से न Accused- जहां से दिला दे, कहीं से दिला दे Complainant- गोविंदपुरी से बटला हाउस से न Accused- जहां से दिलवा दे ....................
152. After going through this conversation, it is very much apparent that accused has taken the complainant in confidence and the complainant is saying that he is carrying complete amount of Rs.1 Lakh and also seeking assurance from him for protection from any disturbance/botheration and also assuring to buy a mobile phone for him in a day or two. This fact is very much clear from the underlined words, "teri meharbani, mobile tujhe ek ka din mein dila dunga". The conversation itself reveals that it must have taken some moment to utter so many words and actually no 'hurry' could be sensed from the said conversation. One more revealing fact is that PW2 (complainant) (Niyay Bindu) Page No. 91 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) in his cross-examination dated 15.03.2022 said that, "at the time when he kept money on table, he remained there for two minutes". Same is sufficient to establish that the contention in respect of 'hurry' as argued by the Ld. Counsel is baseless.
153. One more point can be added at this stage that when the accused was not willing to accept the said bribe amount, why he did not raise any alarm against the same as he could have even returned the said amount to the complainant if he was not actually willing to accept the same. If the whole incident of the complainant going inside the IO room to meet the accused and conversation of both the persons in the light of the audio recordings as well as the CFSL reports in corroboration of the investigation pertaining to the hand washes of the accused, this aspect gets clarified that the complainant actually gave the money to the accused who duly accepted the same which caused his hand washes to turn into pink and the said money was later on recovered from his own pocket and hence, it gets confirmed that the accused actually accepted the said tainted bribe money from the complainant.
154. In addition to the same, the conversations which took place between the accused and the complainant were recorded in the memory card through DVR which was lying in the pocket of the complainant. The said memory card was (Niyay Bindu) Page No. 92 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) produced before the court during the deposition of the complainant as PW2 in duly sealed condition when the same was bearing the seal of CFSL, CBI, NEW DELHI and the witness identified his signatures on all the relevant articles. The other prosecution witnesses who were examined subsequently, also corroborated this fact and identified their signatures on the said articles. These circumstances signify that the memory card Q4 remained in sealed condition till the same was produced before the court, therefore, no question arises in respect of manipulation in the contents of the memory card. Moreover, the factum of preparation of the transcripts of the recorded conversation has also been proved on record by various prosecution witnesses. Moreover, when the said conversations were played before the court during the deposition of the concerned witnesses, the voice of the complainant was duly identified by himself as PW2 as well as by PW3 and by PW5 and the voice of accused was identified by PW2, PW5, and PW15.
(b) Oral testimony in respect of trap
155. In furtherance of the above discussion, the oral testimony of the witnesses is also required to be taken into account. As per the testimony of PW14 Insp. Ajay Kumar who was marked the RC registered against Ct. Suman Prakash by SP/CBI Sh. Ashok Sharma, constituted a trap team including Sh. Rajesh Kumar Vimal (independent witness/PW3), Sh. Arun (Niyay Bindu) Page No. 93 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) Kumar (independent witness/PW5), complainant Mohd. Naeem (PW2), Insp. Amit Kumar Pandey (PW4), S. K. Pandey, Insp. C. M. S. Negi, SI Mukesh Kumar Pandey, Insp. Umesh Kaushik and some other CBI officials. He has stated that the contents of complaint were read over and explained to all the trap team members and complainant produced GC notes amounting to Rs.1 Lakh as per the previous directions issued to him by the CBI officer and the distinct numbers of the said GC notes were noted down separately. On the directions of PW14 Insp. Ajay Kumar (TLO), Insp. Umesh Kaushik treated the GC notes with phenolphthalein powder and also conducted the demonstration in this regard and Sh. Rajesh Kumar Vimal (independent witness/PW3) conducted the personal search of complainant. All these facts have been corroborated by both the independent witnesses as well as CBI officials and also by PW2 as he, like other witnesses, has also identified his signatures on the relevant documents.
156. The prosecution witnesses have deposed that a new memory card was inserted in the DVR and after ensuring the blankness of the memory card, introductory voices of both the independent witnesses i.e. PW3 and PW5 were recorded. Thereafter, being equipped with trap kit and DVR etc., the trap team reached PS Sarita Vihar to trap the suspect officer. The complainant was directed by the TLO not to touch the tainted (Niyay Bindu) Page No. 94 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) currency notes which were being kept in his pocket except at the time of giving the same to the accused on his specific demand or to any other person on the specific direction of accused. These facts were corroborated before the court by most of the prosecution witnesses including both the independent witnesses.
157. Although, it is pointed out by Ld. Defence Counsel that except the complainant, there is no direct evidence of acceptance but Ld. Sr. PP has already clarified that to a certain extent, PW2 has proved certain facts about the incidents which took place inside the aforesaid room, though, not proving complete facts. It is also submitted by the Ld. Sr. PP that the circumstantial evidences have fully corroborated the incident of acceptance. It is noticeable that CFSL report in respect of presence of phenolphthalein powder in the hand washes of accused as well as pocket of jacket and pocket of pant wash of accused is corroborating the story of prosecution. Various witnesses including the chemical examination expert also corroborated this fact in addition to the recorded conversations which have already been reproduced and discussed in the previous part of this order.
158. With this, the argument of Ld. Defence Counsel about absence of direct proof of acceptance is rendered as baseless.
(Niyay Bindu) Page No. 95 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
(c) Circumstantial evidence
159. As pointed out by the Ld. Sr. PP for CBI that in the present matter, there are strong circumstantial evidences in respect of which, a presumption can easily be drawn that the prosecution story has been completely proved and in order to scrutinize this aspect, we may be guided by certain authorities in respect of circumstantial evidence as given below:
160. In Vijay Kumar Vs. State of Tamil Nadu (2021) 3 SCC 687, the Hon'ble Apex Court guided that, "in absence of direct evidence the demand and/or acceptance can always be proved by other evidence such as circumstantial evidence".
161. In State of UP Vs. Anil Singh 1988 SC 1998, Supreme Court has held as under:-
"With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or (Niyay Bindu) Page No. 96 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) falsehood are so glaring as utterly to destroy confidence in the witnesses."
162. At this stage, it has to be seen that when demand by accused has already been established, the same was coupled with placing of currency notes on the table, which were later on recovered from the pocket of accused, then the presumption of delivery by complainant and acceptance by the accused whereby keeping the money in his pocket, falls in favour of the prosecution.
(d) Chemical examination report
163. The above discussed evidence on record obtains further corroboration from the testimony of PW Sh. V. B. Ramteke, who affirmed that all four bottles were received in the Chemistry Division by Ms. Geeta Rani, Senior Scientific Assistant on the instructions of the said witness sealed with the seal of CBI which were also found on the cloth wrappers of these four bottles at the time of production in the court. All these bottles and cloth wrappers as well as envelopes were signed by PW9, before putting the same in the parcel and sealing the parcel with his seal i.e. PSO CHEMISTRY CFSL NEW DELHI. His report Ex. PW9/A (Colly.) also confirms and corroborates testimony of PW9 in respect of the above said sealed bottles. The said four sealed glass bottles, wherein all the four washes were (Niyay Bindu) Page No. 97 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) kept, have also been produced before the court during the evidence of various prosecution witnesses and the same were proved on record during the evidence of independent witness Arun Kumar as Ex.PW5/Article-1 (RHW), Ex.PW5/Article-2 (LHW), Ex.PW5/Article-3 (left pocket of jacket wash of accused) and Ex.PW5/Article-4 (right back pocket wash of pant of accused). PW9 had found all these articles containing phenolphthalein powder. There is no reason available to discard the said report, which is based on the examination of different washes, using scientific methods nor is there any reason to doubt the integrity of PW9, so as to presume that he gave a false report. Hence, I find his report to be a reliable piece of evidence.
(e) Proving the recovery
164. During the trap proceedings, after the tainted bribe money was handed over by the complainant to the accused, he came out of the room whereby giving pre-decided signal to team members and after apprehension of the accused, the said bribe amount was recovered from the pocket of the accused on the instructions of TLO (PW14) by the independent witness/PW3 Rajesh Kumar Vimal.
165. The defence has raised certain contentions in respect of recovery as Ld. Counsel has argued that that PW3 has deposed about recovery of trap money from the pocket of other (Niyay Bindu) Page No. 98 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) person and not that of the accused. He has further pointed out that the presence of other person is being mentioned by other witnesses as well including PW2, PW3, PW4, PW5 and PW14 but there is no mentioning of the said person in the documents/memos produced by the CBI as the said person could have been made a chance witness in the proceedings and CBI has concealed this fact as to under what circumstances, that person was detained which casts a serious doubt against the prosecution.
166. On the other hand, Ld. Sr. PP has submitted that the recovery of the tainted amount from the pocket of accused has been duly proved by the other prosecution witnesses including the TLO and PW5 (independent witness) in corroboration of the fact that both the hand washes as well as the pocket of pant wash and pocket of jacket wash of the accused turned into pink and the CFSL report also gave a positive result in this regard. (Said report is already discussed). This is also to be seen that although, PW3 states that the said amount was recovered from the pocket of other person but through the deposition of almost all the prosecution witnesses as well the documents including post trap memo Ex.PW5/B, it is established that the money was recovered from the pocket of accused.
167. Ld. Sr. PP has further pointed out that the said other person might have been a third person who was not connected (Niyay Bindu) Page No. 99 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) with the proceedings but who was detained by the team members as the said other person was present at the spot at the time of apprehension of accused and the said person could not have been set free as he could have disclosed about the proceedings to the public and after apprehension of the accused was completed, the said third person was no more required and he was allowed to leave the spot. Ld. Sr. PP has specifically argued that the presence of third person or his detention is not an aspect which is going to help the accused in his defence because had that person being required for joining the investigation, he could have been made a spot witness by the TLO, but when two independent witnesses were already there on the spot, any third witness was not required to join the proceedings. Moreover, it is convincingly argued by the Ld. Sr. PP that probably the said other person was a police official of the same Police Station where the accused was posted and had he been made a witness to the proceedings, the said person being his colleague, would have deposed in favour of the accused himself, that is why, the TLO preferred not to make that other person join the proceedings.
168. The next line of argument of Ld. Counsel is that there are contradictions in the sequence of trap proceedings as well because PW4 and PW14 have stated that the hand washes were taken first and then recovery of trap money was done but PW3 and PW5 have stated about these events in reverse order (Niyay Bindu) Page No. 100 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) and as such, sequence of events narrated by every witness is different. In response to this argument, Ld. Sr. PP has clarified that the deposition of PW4 and PW14 is more reliable as the same has been corroborated from the sequence given in the charge-sheet. This is acceptable that being the official witnesses, PW4 and PW14 were the responsible Officers of CBI under whose supervision and instructions, the proceedings of verification and trap were being conducted respectively and that they are more under an obligation to give the correct version of the proceedings because the independent witnesses i.e. PW3 and PW5 might have forgotten the sequence of events who joined the said proceedings only as witnesses and also that even if there are minor contradictions in the sequence of events, the actual happening of events cannot be questioned irrespective of the fact as to which event took place first and which event took place next.
169. Ld. Counsel has further argued that the witnesses are also giving different versions in respect of recovery as PW2 has deposed that while CBI officials and second independent witness were inside the PS, he straightaway went out and started driving his scooty towards his shop and that he later on, came to know about the recovery of bribe amount and PW3 has stated that complainant had already left the place after giving signal to the team but in contradiction to the same, PW5 has deposed that after (Niyay Bindu) Page No. 101 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) recovery of trap money, he himself, the accused, PW3, the complainant (PW2) and all the CBI officials went inside the building. In respect of this contention, Ld. Sr. PP has argued that even if it is presumed that the complainant was not present at the spot for a few minutes as he himself has stated (as PW2) that CBI officer stopped him, the complainant cannot be presumed to be absent from the spot meaning thereby that complainant could not actually leave the spot and it is also possible that PW3 saw the complainant when he was about to leave the spot but later on, attention of PW3 was drawn to some other event and PW5 has also correctly deposed in respect of the incident of going all the team members along with the accused inside the building. This is to be seen that all these depositions in respect of events, after apprehension of accused, if the same are closely scrutinized, are not actually contradictory but the same are only supporting the story of prosecution itself.
170. Ld. Counsel has further argued that PW5 has deposed that the recovered GC notes were kept in an envelope and signed by himself, PW3, PW2 and CBI officials but PW2 (complainant) never actually signed the same and this fact shows contradiction in the prosecution evidence. In respect of this contention, Ld. Sr. PP has submitted that the same may be a minor lapse of memory on the part of PW5 being the independent witness but the other prosecution witnesses have correctly (Niyay Bindu) Page No. 102 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) deposed in respect of this event and the same has duly corroborated the version of CBI as being given in the charge- sheet.
171. Ld. Counsel has further argued that PW2 and PW3 had deposed that a liquid from a glass bottle was poured into a vessel in which hand washes were taken while PW3 has deposed that the hand washes were kept in test tubes while other witness stated the same to be glass bottles and as such there are contradictions in the deposition of prosecution witnesses. In response to this contention, Ld. Sr. PP has submitted that most of the witnesses are talking about only the glass bottles and much reliance cannot be placed on the deposition of PW2 and PW3 as both these witnesses have already been declared hostile as they have deviated from their previous version of the proceedings. Moreover, except PW3, all the witnesses are talking about the glass bottles and even if PW2 and PW3 are talking about a liquid poured from glass bottle, they have not stated that the said liquid was already coloured as the same may be water which might have been used for preparing sodium carbonate solution for taking the hand washes and that as such, there is no substantial contradiction.
172. On the basis of the above discussion, the negotiation in respect of the bribe amount, demand of bribe, acceptance and (Niyay Bindu) Page No. 103 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) recovery of the same as well as the verification and trap proceedings have been proved on record which leaves no doubt that the demand as well as acceptance of money was done as illegal gratification for doing an unlawful act by the accused.
PRESUMPTION UNDER SECTION 20 OF THE ACT
173. The foregoing discussion on evidence, establishes the existence of demand, acceptance as well as recovery of bribe amount from the accused. In such situation, as far as offence u/s 7 of the Act is concerned, a presumption u/s 20 of the Act comes into play. Section 20 of PC Act, 1988 provides as under:
"20. Presumption where public servant accepts any undue advantage-Where, in any trial of an offence punishable under section 7 or under section 11 it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under Section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be under Section 11".
174. In the case of Vinod Kumar v. State of Punjab, 2015 CRL. J. 1442 (SC), Supreme Court quoted observations from (Niyay Bindu) Page No. 104 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) other cases with approval and made following observations, which are relevant for the purpose of this case as well:
"22. .........In a case of bribe, the person who pays the bribe and those who act as intermediaries are the only persons who can ordinarily be expected to give evidence about the bribe and it is not possible to get absolutely independent evidence about the payment of bribe."
From the aforesaid authorities it is clear that a trap witness is an interested witness and his testimony, to be accepted and relied upon requires corroboration and the corroboration would depend upon the facts and circumstances, nature of the crime and the character of the trap witness.
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Chinnappa Reddy, J. speaking for the two- Judge Bench observed as follows:-
"......It is not necessary that the passing of money should be proved by direct evidence. It may also be proved by circumstantial evidence. The events which followed in quick succession in the present case lead to the only inference that the money was obtained by the accused from PW 3. Under Section 114 of the Evidence Act the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case."
35. ...........It was contended before this court that presumption under Section 20 of the Act can be drawn only when the prosecution succeeded in establishing with direct evidence that the delinquent public servant had accepted or obtained gratification. It was further urged that it was (Niyay Bindu) Page No. 105 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) not enough that some currency notes were handed over to the pubic servant to make it acceptance of gratification and it was incumbent on the part of the prosecution to further prove that what was paid amounted to gratification. In support of the said contention reliance was placed on Sita Ram (supra) and Suraj Mal v. State (Delhi Admn.) (1979) 4 SCC 725. The three-Judge Bench referred to Section 20 (1) of the Act, the pronouncements in Hawkins v. Powells Tillery Steam Coal Co. Ltd. (1911) 1 KB 988 and Suresh Budharmal Kalani v. State of Maharashtra(1998) 7 SCC 337 and adverted to the facts and came to hold as follows:-
"From those proved facts the court can legitimately draw a presumption that the appellant received or accepted the said currency notes on his own volition. Of course, the said presumption is not an inviolable one, as the appellant could rebut it either through cross-examination of the witnesses cited against him or by adducing reliable evidence. But if the appellant fails to disprove the presumption the same would stick and then it [pic]can be held by the court that the prosecution has proved that the appellant received the said amount."
175. Keeping in view the aforesaid legal principles explained by Supreme Court, this court while looking into the relevant part of evidence of PW2, PW3, PW4, PW5, PW14 and PW16 which has already been discussed above, hold that the allegations of prosecution are established by virtue of reliable piece of evidence.
(Niyay Bindu) Page No. 106 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) CERTAIN ADDITIONAL CONTENTIONS OF ACCUSED
176. There are certain additional arguments addressed by Ld. Defence Counsel in respect of the whole investigation and the evidence on record which are still remaining to be dealt with and the same are hereby taken into consideration.
(a) Rough Site Plan
177. Ld. Counsel for the accused has vehemently argued that the rough site plan filed on record and relied upon by CBI is a fake document because there is no information or mentioning about the spots qua the proceedings of apprehension of accused, hand washes and recovery spots which proves the prosecution story to be a false one. Ld. Counsel has also quoted "Shingara Singh Vs. State of Haryana & Anr." and "Vijay Singh Vs. State of M.P." in support of his arguments.
178. In response to this contention in respect of the site plan, it is submitted by the Ld. Sr. PP that both the citations quoted by the Ld. Counsel are pertaining to the offence of murder where facts are altogether different. He has also argued that it is only a rough site plan wherein every single circumstance is not needed to be reflected. Ld. Sr. PP has also pointed out in the said rough site plan, which was proved on record during the deposition of PW5 as Ex.PW5/D, the position of accused in the (Niyay Bindu) Page No. 107 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) IO room with presence of complainant is shown. Ld. Sr. PP has also pointed out that various prosecution witnesses have identified the site plan and the same has been proved on record wherein various witnesses have identified their signatures also. He has also stated that the spot of arrest of accused is not required to be pointed out in site plan because all the proceedings relating to the apprehension of accused have taken place at the backyard/backside of the main building of the Police Station and the said back side area is very much apparent in the site plan.
179. The most important concern at this stage in respect of rough site plan is that site plan is very specifically showing the place where the offence was actually committed i.e. transaction/acceptance of bribe amount by the accused from the complainant i.e. the IO room in the Police Station. Other things in respect of spot of arrest etc. are not that important to locate. However, Ld. Defence Counsel has not specified as to how the defence of the accused has been affected due to this site plan. Hence, this argument of Ld. Counsel pertaining to site plan stands refuted.
(b) Admissibility of CFSL reports
180. Ld. Counsel has raised a strong argument in respect of inadmissibility of the CFSL reports for want of notification U/s 79-A of Information Technology Act. In respect of this objection (Niyay Bindu) Page No. 108 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) of Ld. Counsel, the main issue is basically a legal issue, so as to decide that in absence of notification u/s 79-A of Information Technology Act, whether report given by an expert from CFSL, New Delhi regarding examination of electronic evidence, would be admissible in evidence?
181. In order to look for an answer to aforesaid legal issue, we may refer to the relevant legal provisions in this regard. Section 79-A of I.T. Act was enacted in the year 2000, which came into force w.e.f. 17.10.2000. This provision provides that the Central Government may for the purposes of providing expert opinion on electronic form evidence, specify, by notification, any department, body or agency as an examiner of electronic evidence.
182. The provision u/s 79-A I.T. Act or provision u/s 45- A Evidence Act do not say that in absence of such notification, opinion based on scientific examination given by a person well versed or skilled in such science, cannot be admissible in evidence. Unless such bar is created in law, it cannot be read as an extension of section 79-A of I.T. Act that the report given by any other body/lab shall be inadmissible in evidence. Otherwise also, it is well settled proposition that a hyper technical approach should not be adopted while interpreting a report of an expert unless the same results into the defeat of the ends of justice.
(Niyay Bindu) Page No. 109 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
183. Madras High Court in the case of K. Ramajayam v. Inspector of Police, Chennai reported in 2016 Cr.LJ 1542, facing similar kind of situation, observed that-
It is axiomatic that the opinion of an expert, which is relevant under Section 45 of the Indian Evidence Act, 1872, when accepted by the Court graduates into the opinion of the Court. The Central Government has not yet issued notification under Section 79A of the Information Technology Act, 2000 on account of which Section 45A of the Indian Evidence Act, 1872 remains mute.
Therefore, the methods evolved by Kala (PW-23) and Pushparani (PW-24), Scientific Officers of the Tamil Nadu Forensic Sciences Department to analyze and give their opinions on the electronic data, are correct and cannot be faulted."
184. It is also worth to be seen that section 293 Cr.P.C. refers to certain government scientific experts and provides that report of such experts may be used as evidence even without calling that expert before the court. Thus, report of these experts were given special status to become admissible without formally calling such expert to prove the same. In the year 2005, legislature added one more category in section 293 (4) Cr.P.C. to include any other government scientific expert specified by notification by the Central Government for this purpose. This addition took effect from 23.06.2006. Thereafter, legislature again came up with section 45-A Evidence Act, to say that (Niyay Bindu) Page No. 110 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) opinion of examiner of electronic evidence referred in Section 79-A of I.T. Act shall be a relevant fact in respect of any information stored in any computer resource or any other electronic devise. Thus, it can be seen that legislature had been taking steps one after another for the purpose of due legal recognition of electronic evidence in formal manner. Thus, section 45 of Evidence Act in itself is enabling provision to accept opinion of such expert in the court proceedings. Obviously, the courts over the passage of time, have evolved certain precautionary measures for the purpose of appreciation of any such opinion. Their opinion/reports are evaluated on merits, rather than being rejected on the grounds that they are not notified experts. Ld. Counsel for accused has also argued that the voice expert i.e. PW13 is actually not an expert that is why his report is not admissible and also that in the cross-examination, the said witness has admitted that he has not done any degree or diploma in phonetic and linguistic science or in audiometry and spectrography science. In this regard, it has to be considered that in the examination in chief of the said witness himself, he has stated that his educational qualification is M. Sc. (Physics) and Ph.D (Forensic Science) and in response to the question, posed by the ld. Defence counsel during the cross-examination about his qualification of phonetics etc., he submitted that he has undergone various programs under forensic speaker identification which includes basic knowledge of phonetics and linguistics as (Niyay Bindu) Page No. 111 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) well as spectrography identification. It has also come on record that the said witness has examined more than 665 cases and deposed in more than 180 cases in different courts all over the country in this regard. After considering all these aspects about the qualification and experience of the said expert witness, court is not having any ground to doubt the said witness to be an expert in his field. However, if the defence is raising any such objection about the qualification, then the accused has to bring some concrete/cogent evidence in respect of the said objection. In the absence of the same, the arguments as addressed by Ld. Defence Counsel are rendered as forceless.
(c) Admissibility of recorded conversations
185. Ld. Defence Counsel has also raised an objection in respect of credibility/admissibility of recorded conversation. So far as the credibility is concerned, the expert witness i.e. PW13 Dr. Subrat Kumar Chaudhary, CFSL voice expert, has submitted in his report as well as in his examination in chief before the court that he has carefully examined the questioned and specimen voices and given his report accordingly. He has also submitted in his report that the same was prepared on the basis of auditory examination as well as spectrographic examination of questioned voices and specimen voice of accused Suman Prakash and thereafter, reported the same to be probable voices of Suman Prakash. The said report is being duly stamped and signed by (Niyay Bindu) Page No. 112 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) him, then no question arises in respect of tampering of the same. Otherwise also, it is a settled principal of law that if an objection is being raised by one person against the admissibility of a piece of evidence, he has to give some admissible argument or proof in this regard. In absence of the same, a presumption U/s 80 of The Indian Evidence Act, 1872, falls in favour of the report Ex.PW13/A (colly.) as when the same has been produced before the court, purporting to be a record of the evidence given by a witness to take such evidence, the court shall presume the document to be genuine when the same is signed by the person/official preparing the said document.
186. In addition to the same, it has been established by the prosecution witnesses that a new memory card was used for each separate recording in various proceedings conducted during the investigation. So far as the articles used in the recorded conversations are concerned, the record shows that they have been intact. This is also notable that when the memory cards were duly sealed without any tampering, then there remained no scope to make any manipulation in the same subsequently. It is further established with the fact that when the parcels of memory cards, Q1, Q2, Q3 and Q4 were produced before the court in duly sealed condition during examination of PW2 (complainant), same were bearing seal of CFSL CBI NEW DELHI as well as the endorsement of "C.B.I. A.C.B. N.D." and Stamp of Malkhana (Niyay Bindu) Page No. 113 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) and the said witness (PW2) also identified his signatures with date on all the three articles including the brown envelope, main packet and plastic cover of memory card. The other prosecution witnesses who were examined subsequently, also corroborated this fact and identified their signatures on the said articles. These circumstances signify that the said memory cards remained in sealed condition till the same were produced before the court, therefore, no question arises in respect of manipulation in the contents of the memory cards. Moreover, the factum of preparation of the mentioned transcript of the recorded conversations has also been proved on record by various prosecution witnesses.
187. It is further argued by the Ld. Counsel that the prosecution has heavily relied upon the conversations including Q4 which was stated by PW2 and PW15 to be not clear and who failed to identify the voice in the said recording in court but they identified the same at CBI office which shows the presence of pressure of CBI upon the said witnesses. In response to this contention, Ld. Sr. PP has submitted that there is a time gap between the time when the voices in the said audio files were played at CBI office before PW2 i.e. on 09.02.2021 and the time when the same were played in the court before PW2 i.e. dated 15.03.2022 and the same may cause some memory lapse to the witness and the same is also applicable in respect of another witness ie PW15. Ld. Sr. PP has specifically pointed out that (Niyay Bindu) Page No. 114 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) although, in one of the files, both these witnesses could not identify the voice of accused Suman Prakash on the ground of being unclear but the said Q4 is containing four audio files, out of which, the witnesses have identified the voices in other three files and also that the accused cannot seek support from one point which may be weaker on the part of witnesses when the other submissions are confirmed. The submissions made on behalf of CBI are seemingly convincing. This is also worth taking into account that when the said audio file no. 210121_1701 was played before PW2 on 15.03.2022, it is very much mentioned in para 19 of the evidence of PW2 that " his dialogues at point A3 onwards were addressed to Suman, but cannot identify the voice of Suman because of unclear voice" and it highlights that the conversation in the said file has been very much identified by the complainant to be the conversation which took place between him and the accused on a particular point of time. This much is sufficient to refute the contention raised by Ld. Counsel pertaining to Q4.
(d) Admissibility of documents/articles
188. Ld. Counsel for the accused has raised a strong argument to the effect that none of the PWs have stated anything about depositing case property at malkhana and not even any Malkhana Incharge has been examined in this regard. Ld. Counsel has pointed out that neither Q1, Q2, Q3 and Q4 were (Niyay Bindu) Page No. 115 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) ever deposited in malkhana on respective dates of recording nor PW14 and PW16 have submitted that they deposited the case property in malkhana at any point of time even in respect of different washes and also that no register in respect of such malkhana entries has been produced during the prosecution evidence. Ld. Counsel has also argued that even the specific number of CBI seal which has been used in all the proceedings has nowhere been mentioned in the documents which shows failure of prosecution to rule out tampering in the said documents/articles which were collected during the investigation. Ld. Counsel has also quoted Jahan Singh Vs. CBI 2021 (1) JCC 35, Rajender Kumar Narang Vs. State 2014 (2) JCC 1085, whereby stating that it has been held by the Hon'ble High Court of Delhi that the link evidence is missing in respect of the articles pertaining to the investigation. Ld. Counsel has further quoted State of Rajasthan Vs. Daulat Ram 1980 SC Cases (C) 683, whereby stating that the Hon'ble Supreme Court has taken serious view in respect of possibility of samples being changed/tampered with during the period from its collection to its reaching the public analyst. Ld. Counsel has further quoted Valsala Vs. State of Kerala Crl. Appeal. No.576 of 1991, whereby stating that the Hon'ble Supreme Court held that the articles appeared to have not been kept in proper custody and the tampering of the same cannot be ruled out and hence, Ld. (Niyay Bindu) Page No. 116 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) Counsel has shown a doubt in respect of the articles/samples seized/collected during the investigation.
189. In respect of these contentions, Ld. Sr. PP has submitted that in respect of tampering of case property, the most important concern is to check as to whether proper procedure has been adopted by the investigating agency or not and in the present case, the same has been duly adopted. He has also pointed out that all the articles were duly sealed in the presence of independent witnesses and the seal was thereafter handed over to the independent witness. He has also pointed out that whenever any article/exhibit which is sent by CBI to the CFSL for expert examination, is found as not properly sealed or intact, CFSL rejects the request for examination of the same but in the present case, there was no such circumstance.
190. In respect of Jahan Singh case, this is to be seen that there was no record of handing over the seal by witnesses and hence, the said observation is not applicable in the present case.
191. The case of State of Rajasthan Vs. Daulat Ram is pertaining to NDPS Act, which is a more stringent law and hence, not applicable to the present circumstances. Moreover, the labels in the given case were not in order and there was change of hands in respect of samples but in the present case, no such (Niyay Bindu) Page No. 117 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) circumstance is there and even the witnesses pertaining to those samples were duly examined before the court who established that the samples were sealed and intact.
192. In respect of the citation of Valsala Vs. State of Kerala also, it is pointed out by Ld. Sr. PP that there is a delay of three months, that is why, Hon'ble Supreme Court rejected the samples on the ground of an ordinate delay, therefore, the said citation is also not applicable in the present circumstance. So far as the citation of Rajinder Kumar Narang Vs. State is concerned, it is reflecting that the exhibits were retained in almirah which is not a case herein as all the articles are sealed in the presence of independent witnesses and later on, the same were produced from malkhana in sealed condition while bearing malkhana seal and hence, the said citation is also not applicable in the present case. Otherwise also, as a usual practice, Malkhana Incharge are not examined as the same is not required because when a particular article is produced from Malkhana with its stamp, then it is presumed that after completion of a particular procedure, the articles were duly deposited in Malkhana. Hence, the argument of Ld. Defence Counsel in this regard is rendered as forceless.
(e) Recording of sample voice of the accused
193. Ld. Counsel has vehemently argued that the words picked by the CFSL from the voice of accused are pertaining to (Niyay Bindu) Page No. 118 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) the conversations of verification proceedings which is against the law and guidelines set by Hon'ble Supreme Court. Ld. Counsel, while referring to Sudhir Chaudhary etc. Vs. State (NCT of Delhi) Crl. A. Nos.700-701 of 2016, has stated that Hon'ble Supreme Court has laid down in clear words that the sample voice should not contain inculpatory words in the text which has been used for taking the sample. Ld. Counsel has also quoted Vishal Chand Jain @ V. C. Jain Vs. CBI 2011 (1) JCC 570 whereby stating that in the given case, the appellant was given the text of transcript of the conversation which was recorded between the complainant and the appellant (accused) with the instructions to read the same for the purpose of recording the sample voice and the Hon'ble High Court of Delhi criticized the same. While quoting these citations, Ld. Counsel has claimed that in the light of this fact, the benefit of doubt should be given to the accused.
194. In response to this contention as also pointed out by Ld. Sr. PP that although the manner of taking specimen voice may be irregular but voices are being duly identified in the court. He has further clarified that only a rough transcript is prepared in most of the trap cases which may be only a part of the detailed transcription of the recorded conversation, but the detailed transcription or conversation is different, therefore, the contention raised on behalf of accused, is not acceptable. Ld. Sr. PP has also (Niyay Bindu) Page No. 119 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) pointed out that although, in the above cited case i.e. Vishal Chand Jain @ V. C. Jain Vs. CBI, certain directions were issued for again recording sample voice in a particular case of Delhi Police and thereafter, the matter was proceeded further but there is no specific guideline issued to be followed by all the investigating agencies.
195. In respect of the above issue, it may be considered that as a usual practice, a rough transcript is given to the accused, while recording his sample voice, which contains words from the transcriptions pertaining to the recorded conversations between the accused and complainant in trap matters and the same is being done in order to facilitate the CFSL Voice Expert to identify the voice in context of those words and to compare the same with the questioned voices in the recorded conversations, Moreover, the voice expert does not give his opinion only on the basis of hearing the said sample voices or questioned voices but the same are being examined through various procedures such as audiometry examination and spectrographic examination etc. and these procedures are also mentioned in the report by the said expert i.e. Ex.PW13/A-1. The argument of Ld. Sr. PP in this regard in respect of citation quoted by the Ld. Defence Counsel that there is no guideline given in the said judgment to be followed by the investigating agency is also noticeable.
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196. Ld. Counsel has further argued that the sample voice of accused was taken at Police Station and not separately at CBI office as claimed by the prosecution. In this regard, this is noticeable that although, there is no such claim by the prosecution, but the requirement is that the place where sample voice was recorded should be peaceful and the accused has not disputed the place where his sample voice was taken to be crowded or noisy. Therefore, this argument is also not having any force.
(f) Claim of accused for benefit of doubt
197. Ld. Counsel has contended that the prosecution has miserably failed to prove its case beyond reasonable doubt and hence, benefit of doubt has to be given to the accused because as per the criminal jurisprudence, all the acquisitions are to be proved by the prosecution beyond reasonable doubt whereby citing Ashish Batham Vs. State of Madhya Pradesh.
198. In rebuttal to this contention, Ld. Sr. PP has submitted that as per the interpretation of Section 7 of PC Act, the same is attracted even when the accused has agreed or attempted to accept the bribe, offence is established. Ld. Sr. PP has submitted that the Judgment of Ashish Batham is not applicable in the given circumstances because the same is pertaining to the offence under IPC where there is no scope for presumption but (Niyay Bindu) Page No. 121 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) under the provisions of PC Act, the discretion of court is wider as under Section 20 PC Act, the court may take presumption of certain facts.
199. Ld. Sr. PP has further argued that in the present case, the demand has been proved by the complainant and acceptance of the bribe amount is also being proved by the complainant and other prosecution witnesses ie PW5 and PW14 in corroboration with the reports of lab expert whereby the presence of phenolphthalein power in both the hand washes as well as pocket wash of jacket and pocket wash of pant of accused has been found.
200. After considering the rival submissions, on the basis of the evidence and material already placed on record, this is evident from the deposition of various witnesses that they have established their presence during various proceedings pertaining to the investigation and identifying their signatures on various memos and other documents prepared in their presence. Besides the same, various prosecution witnesses including the complainant as PW2 have identified the conversations which took place between the accused and the complainant as well as various voices including the voice of accused and also some of the witnesses including the complainant as PW2 have correctly (Niyay Bindu) Page No. 122 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) identified the accused who was present in the court at the occasion of their respective depositions.
(g) Miscellaneous arguments
201. Ld. Counsel has further argued that no other police officer is being mentioned in any of the memos prepared in respect of the trap proceedings. Ld. Counsel has also argued that in the present case, IO is a member of trap team who cannot be so and hence, the whole investigation proceedings gets vitiated. Ld. Counsel has also argued that as per the deposition of PW2, he signed all the papers at CBI office and even on one occasion, he was made to sign some of those in his car near the CBI office and also that as per deposition of PW3, the documents of trap proceedings were signed on the next day whereby stating that all these facts cast a doubt upon the prosecution evidence. Ld. Counsel has pointed out that PW3 has stated in his deposition that he was not given anything by the verification officer to carry but in the latter part of his deposition, he has stated that CBI seal was still lying with him. Ld. Counsel has also pointed out that in his examination in chief dated 08.04.2022, PW3 has stated that introductory voices of himself, complainant and that of the other independent witness were recorded on the day prior to the day of final trap which cannot be possible as the other independent witness could join the proceeding only on the day of final trap.
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202. In response to these contentions, the Ld. Sr. PP has clarified that there is no rule that the IO cannot be a trap team member, therefore, the contention of Ld. Counsel in this regard is baseless. Moreover, the CBI brass seal was later on produced by the other independent witness i.e. PW5 and hence, the submission of PW3 that the said seal was lying in his possession, becomes worthless. Ld. Sr. PP further pointed out that the prosecution is more relying upon the deposition of PW4 and PW5 as it is already pointed out that PW2 and PW3 have already turned hostile and there is no point in discussing about the depositions and contradictions therein.
203. Ld. Counsel has also argued that the present accused is a Constable and a Constable is neither having any say in the investigation of a rape case nor he is having any authority to arraign any person as accused in such case and the prosecution has failed to prove as to how the accused being a Constable can demand bribe in respect of a rape case.
204. In response to this contention, Ld. Sr. PP has submitted that although a police official of the rank of Constable is not competent to investigate any case, but he can always assist the investigating officer in the same and whatever job is assigned by the IO, he shall be duty bound to do that. Further, this very fact that a constable cannot investigate a case may be known to (Niyay Bindu) Page No. 124 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) the police or accused but the complainant who is not conversant with hierarchy of the police system, is not supposed to know the said fact. In respect of these contentions, the court has to consider that this is not the case of the prosecution that accused Suman Prakash ever claimed that he was Investigating Officer of the case and as per the complainant's version also, Suman Prakash was demanding money to save him in the case already registered in the Police Station by using his influence, whereas, during investigation, it has been established that he demanded money on the pretext of getting the complainant saved from his impleadment in the rape case and not only this, accused Suman Prakash also demanded a mobile phone which is clearly reflected from the deposition of prosecution witnesses as well as recorded conversations. Moreover, when the demand, acceptance and recovery has been clearly established with the help of adequate evidence, then, the purpose of demand is not going to help the accused in his defence because being a layman, the complainant can be convinced by the accused in any manner as the same is also reflecting in the conversations. In one of such conversations, accused is informing the complainant that he (accused) himself has recently given an I-Phone for the value of more than Rs.1 Lakh for some purpose to a higher official, the complainant seems to be convinced with the same (this conversation is discussed in para no.143). Now this incident may be co-related with the assurance of the accused to the complainant that after the (Niyay Bindu) Page No. 125 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) deal/transaction has been completed/materialized, the complainant will not receive call from anyone in respect of the alleged FIR (this conversation is discussed in paras no.138 &
151).
205. In respect of the above mentioned various objections of defence, it has to be taken into account that the inconsistencies referred to by Ld. Counsel are minor deviations, which do not shake the credibility of substantial facts. Moreover, some minor discrepancies are not treated to be fatal for the case of prosecution. Time and again Supreme Court had been making such observations and a few of them are as follows:
206. In State of Rajasthan Vs. Smt. Kalki and Another, (1981) 2 SCC 752 (FB), Hon'ble Supreme court observed that "In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. Those discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
207. In State of U.P. Vs. M.K. Anthony, AIR 1985 SC 48, Hon'ble Supreme Court held that :-
(Niyay Bindu) Page No. 126 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) "While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole......."
208. It is being further observed by the Hon'ble Apex Court that -
"It would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer."
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209. Same observations were made by Hon'ble Supreme Court in State Vs. Saravanan & Anr. AIR 2009 SC 152.
210. In Vidhya Rani and Madan Lal Vs. State (Delhi Admn.), Criminal Appeal Nos.186 and 385/1997, it was held that:-
"5. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:
a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details.
c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
d) By an large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
e) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-
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f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-
examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
h) Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important 'probabilities factor' echoes in favour of the version narrated by the witnesses."
211. In view of above-mentioned legal principles, this court do not find some minor discrepancies to be such material discrepancy which may have the effect to discredit the overall testimony of the prosecution witnesses. Therefore, the objections of defence cannot be sustained to doubt the proceedings or documentary evidences. From the testimony of all the witnesses (Niyay Bindu) Page No. 129 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) of verification proceedings as well as trap proceedings, alongwith the contents of recordings in Q1, Q2, Q3 and Q4, it is found that all these pieces of evidence corroborate and complement each other in respect of events taken place and the demand and acceptance is well explicit in the circumstantial evidence as well as in the recorded conversations and the same are sufficient to establish the allegations of the charge beyond any reasonable doubt.
CONCLUSION
212. After having gone through the case laws cited by both the parties. I find that more than one case law/judgment have been cited by the defence to illustrate same legal principle, which was not actually required. I have referred to some judgments in my findings to illustrate the applicable legal principle. There cannot be any dispute regarding settled legal principles, however, decision in the case is also dependent upon the specific facts and evidence on the record. I have given my findings accordingly. On the basis of my above mentioned analysis of evidence, I find that accused while acting in his official capacity, did demand bribe amount of Rs.1 Lakh along with one mobile phone and accepted bribe of Rs.1 Lakh from the complainant for helping him by not arraigning him in the rape case filed by the complainant Phulo Devi. I also find that accused has abused his official position to obtain aforesaid bribe amount.
(Niyay Bindu) Page No. 130 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018)
213. Before giving the final decision in the present matter, we may seek guidance from the enlightening conclusion given by the Hon'ble Supreme Court in Neeraj Dutta (Supra) in the following words:
"92. Before we conclude, we hope and trust that the complainants as well as the prosecution make sincere efforts to ensure that the corrupt public servants are brought to book and convicted so that the administration and governance becomes unpolluted and free from corruption."
In this regard, we would like to reiterate what has been stated by this Court in Swatantar Singh v. State of Haryana:
"6.....Corruption is corroding, like cancerous lymph nodes, the vital veins of the body politic, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of being corrupt would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke."
The above has been reiterated in A. B. Bhaskara Rao v. CBI by quoting as under from State of M. P. v. Shambhu Dayal Nagar:
"32. It is difficult to accept the prayer of the respondent that a lenient view be taken in this case. The corruption by public servants has become a gigantic problem. It has (Niyay Bindu) Page No. 131 of 132 Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CNR No. DLCT-11-000222-2021 CBI No. 27/2021 CBI v. Suman @ Suman Prakash RC-DAI-2021-A-0005/CBI/ACB/New Delhi U/s. 7 of PC Act, 1988 (As amended in 2018) spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the functioning of the entire country. Large-scale corruption retards the nation-building activities and everyone has to suffer on that count."
DECISION
214. In view of my foregoing discussions, observations and findings, I reach the conclusion that prosecution has successfully proved a case of offence punishable under Section 7 of The Prevention of Corruption Act, 1988 (as amended in 2018), against the accused Suman @ Suman Prakash beyond all reasonable doubts. Therefore, accused Suman @ Suman Prakash is hereby held guilty for aforesaid offence and is convicted accordingly.
NIYAY Digitally signed
by NIYAY BINDU
BINDU Date: 2024.10.24
16:25:37 +0530
(NIYAY BINDU)
Special Judge (PC Act) CBI-13,
Rouse Avenue Court Complex,
New Delhi.
Announced in the open court
today on 24th Day of October, 2024
(This Judgment contains 132 pages)
(Niyay Bindu)
Page No. 132 of 132 Special Judge (PC Act) CBI-13,
Rouse Avenue District Court, New Delhi