Delhi District Court
Cbi vs . Sarup Singh on 23 August, 2019
IN THE COURT OF SH. SANJAY BANSAL:
SPECIAL JUDGE (PC ACT) CBI-16:
ROUSE AVENUE COURT COMPLEX: NEW DELHI.
CC No (Old):- 01/2017
CC No. (New):-70/2019
CNR No: DLCT11-000303-2019
RC No. DAI-2016-A-0037-DLI
PS: CBI/ACB/New Delhi
U/s 7 & 13 (2) r/w 13 (1) (d) of PC Act, 1988
CBI Vs. SARUP SINGH
S/o Sh. Mohinder Singh
R/o PS Keshav Puram, New Delhi,
P/R/o-Village / PO-Chatwana Lahru,
Tehsil-Jawali, District-Kangra,
Himachal Pradesh, Pin Code-176023
Date of Institution : 02.01.2017
Judgment Reserved On : 13.08.2019
Date of Judgment : 23.08.2019
JUDGMENT:
1. The present case was registered on 28.10.2016 vide FIR vide RC DAI-2016-A-0002-DLI CBI/ACB/New Delhi U/s 7 of Prevention of Corruption Act, 1988 ("PC Act") against HC Sarup Singh (accused herein) of PS Keshav Puram, Delhi, on the basis of written complaint dated 27/10/2016 of complainant Sh. Dharmender Dabas. It was alleged in the complaint that complainant was renovating his canteen at Lawrence Road Industrial Area under PS Keshav Puram and the said renovation had been stopped by HC Sarup Singh of the said PS. Further it was alleged that HC Sarup Singh had demanded bribe to allow complainant to restart the renovation work of said canteen and CBI Case No. 70/2019 CBI vs. Sarup Singh Page 1 of 72 called the complainant at Seven Heaven Banquet Hall. Since complainant (PW-5) did not want to pay the bribe money to HC Sarup Singh, PS Keshav Puram, therefore, he made a complaint to SP, CBI, ACB, New Delhi on 27/10/2016 with the request to take legal action. The said complaint was marked to Inspector Raman Kumar Shukla (PW13), CBI, ACB, New Delhi for verification. Inspector Raman Kumar Shukla (PW13) joined independent witness Sh. Pradeep Kumar Chauhan (PW9), UDC, SE (Project), W-III, Delhi Jal Board, Varunalaya Phase-I, Karol Bagh in the verification proceedings, besides the complainant (PW5). The genuineness of the complaint and demand of Rs. 2 Lakhs was confirmed during said verification when HC Sarup Singh demanded the said amount from complainant. HC Sarup Singh also told the complainant to come with the bribe money between 11:00 hrs to 12:00 noon on the next day i.e. on 28.10.2016. The conversation between complainant and accused HC Sarup Singh was recorded in one DVR (which was subsequently marked as "Q1"). Thereafter, the present case FIR was registered.
2. Insp. Deepak Gaur (PW19) was appointed as Trap Laying Officer (TLO). He constituted a trap team consisting of himself, Insps. Arjun Singh, S.P. Singh, Raman Shukla (PW-13), SI Manish and supporting staff and including complainant Dharmender Dabas (PW-5), independent witnesses Sh. Pradeep Kumar Chauhan (PW-9) and CBI Case No. 70/2019 CBI vs. Sarup Singh Page 2 of 72 Mohd. Waseem (PW-11). It was decided to lay a trap. All trap team members were introduced to each other and purpose of assembly was explained. The complaint of the complainant was read over and explained to all present, who made certain inquiries from the complainant. Thereafter, the complainant and independent witnesses were informed about the procedure of laying a trap and a pre-trap memo was prepared. Bribe amount of Rs. 1 lakh (in denomination of currency notes of Rs. 1000/- each) was produced by the complainant which he had brought to give to the said accused Sh. Sarup Singh as bribe. The distinctive numbers of the G.C. notes so produced by the complainant were mentioned in Annexure 'A' in the pre-trap/handing over memo. The aforesaid G.C. notes produced by the complainant were then treated by Insp. Arjun Singh with phenolphthalein powder. The reaction of phenolphthalein powder with sodium carbonate and water solution was explained to all. On being asked, independent witness Mohd. Waseem touched the said bribe amount of Rs.1,00,000/- treated with phenolphthalein powder with his right hand fingers and then he washed the same in colourless solution of sodium carbonate and water in a glass tumbler, as a result of which the said solution turned pink in colour and thereafter the said pink colour solution was thrown away. Sh. Mohd. Waseem carried out personal search of the complainant on which nothing was left in his possession except his mobile phone. The tainted bribe amount of Rs.1,00,000/- CBI Case No. 70/2019 CBI vs. Sarup Singh Page 3 of 72 was then put in the right side pocket of his pant by another independent witness Sh. Pradeep Kumar Chauhan and complainant was directed not to touch the said tainted bribe amount and to handover the same to the accused on his specific demand not otherwise or to some other person on his specific direction. A new DVR and a new micro SD card (subsequently marked as "Q-2") were arranged. After observing all the formalities, a trap was laid and accused Sarup Singh was caught red handed while demanding and accepting the bribe amount of Rs. 1 lakh, which was recovered from back side of Khakhi shirt near the waist of accused by independent witness Sh. Pradeep Kumar Chauhan. The conversation during bribe transaction was recorded in micro SD card (Q-2) fitted in the DVR. Handwashes were taken and sealed. Similarly, the recovered money was also sealed. The accused was taken to a shop in Shakurpur to further investigate the role of the SHO and Ct. Roshan Gujjar but he did not co-operate. The CBI team came back to Laxmi Narain temple and then another effort was made to call Ct. Roshan. The said constable came but ran away seeing the CBI officials. They then went inside the police station. The baniyan of accused was also seized and its wash was also taken and sealed there. Accused was arrested.
3. After completion of investigation, chargesheet in the present matter was filed on 02/01/2017 for the offences punishable under CBI Case No. 70/2019 CBI vs. Sarup Singh Page 4 of 72 section 7 and Sec.13(2) r/w 13(1)(d) of PC Act, 1988 (as it stood on that day). It was accompanied with a sanction order u/s 19 of the PC Act and accordingly cognizance was taken by learned Predecessor.
4. After supplying complete copies to accused, arguments on charge were heard and vide separate order dated 10/04/2017 of learned Predecessor, charge for the offence punishable U/s 7 of PC Act and for the offence punishable U/s 13 (2) r/w Section 13 (1) (d) of PC Act was framed against the accused to which he pleaded not guilty and claimed trial.
5. To prove the charges, prosecution examined as many as 19 witnesses. Complainant Dharmender Dabas was examined as PW5. Independent witnesses namely Pradeep Kumar Chauhan and Mohd. Waseem were examined as PW9 and PW11 respectively. Insp. Raman Kumar Shukla, Verifying Officer was examined as PW13. TLO DSP Deepak Gaur was produced as PW19. Various other witnesses were also examined to corroborate these witnesses.
6. Statement of the accused was recorded u/s 313 CrPC wherein he denied the incriminating circumstances.
7. Accused examined 06 witnesses in his defence. He examined Faimuddin Saifi as DW1, who was owner of the office at Shakurpur where CBI team alongwith accused had stayed briefly after CBI Case No. 70/2019 CBI vs. Sarup Singh Page 5 of 72 recovery. Accused examined Ct. Rajesh, DW2 and Ct. Manjeet Singh, DW5, who were posted at PS Keshav Puram at the relevant time. He also brought few witnesses such as M.A. Khan, DW3, HC Naresh, DW4 and Akshay Mehta, DW6 to prove certain ancillary facts.
8. Now is the time to take note of prosecution evidence in detail.
PROSECUTION WITNESSES MATERIAL WITNESSES
9. The material witnesses of the prosecution were complainant PW-5, independent witnesses PW-9 and PW-11, verifying officer PW- 13 and TLO PW-19. In addition to these, PW-4 Firoz and PW-10 Praveen are also witnesses who partly participated in the trap proceedings.
10. The most important witness of the case of prosecution is complainant Dharmender Dabas (PW5). He has deposed that when he was renovating his canteen at DSIIDC Campus, Keshav Puram, Delhi, two police officials namely Dinesh and Roshan Gujjar came there and got the work stopped. He has further deposed that on next day, HC Sarup Singh of PS Keshav Puram came alongwith them and again got the work stopped as they were demanding bribe for allowing CBI Case No. 70/2019 CBI vs. Sarup Singh Page 6 of 72 him to restart the renovation. He made a written complaint to SP, CBI, Delhi on 27.10.2016 at about 2.00 p.m. The said complaint is Ex.PW5/A. The SP, CBI had marked the said complaint to Raman Shukla (PW13) of CBI for verification. Verification team consisting of complainant, independent witness Pradeep Kumar Chauhan (official of Delhi Jal Board) and Raman Shukla was prepared. He has further deposed that he made telephone call to HC Sarup Singh of PS Keshav Puram who called him at Seven Heaven Banquet Hall to discuss bribe amount for starting renovation work. For verifying the allegations, Raman Kumar Shukla arranged the DVR and new sealed Memory Card. After ensuring its blankness, the introductory voice of independent witness Pradeep Kumar Chauhan (PW9) was recorded through DVR in the memory card and the same was checked.
11. The DVR in switched on mode was kept in the pocket of complainant. He has further deposed that he alongwith independent witness Pradeep Kumar Chauhan and other CBI officials reached Seven Heaven at about 6.30-7.00 p.m. in two different vehicles. The independent witness was asked to see and hear the entire conversation. He has further deposed that at about 7.00 p.m. HC Sarup Singh and Ct. Dinesh came there on motorcycle and met them. During conversation in the presence of HC Sarup Singh, Ct. Dinesh showed him two fingers whereupon he asked him whether it would cost CBI Case No. 70/2019 CBI vs. Sarup Singh Page 7 of 72 him Rs.20,000/- whereupon Ct. Dinesh replied "2 Lakhs". He has further deposed that on his asking as to whether the said amount can be reduced, HC Sarup Singh stated that he would not take less than Rs.2 Lakhs as SHO would not agree for less than that amount. The said conversation was recorded in the DVR. Thereafter, they returned and DVR was handed back to Raman Shukla, who switched off the same. The verification team heard the said conversation. HC Sarup Singh had asked him to pay the bribe amount next day i.e. on 28.10.2016. The conversation was, however, recorded in the DVR itself instead of the memory card. The verification memo is Ex.PW5/B. The DVR in which the conversation was recorded is Ex.PW8/B-3. After verification, FIR was registered by the CBI. The FIR is Ex.PW5/C.
12. PW5 further deposed that thereafter another independent witness Mohd. Waseem (PW11) was also called to CBI office. After his arrival, documents including FIR was shown to him as well as complainant and TLO Deepak Gaur and few other CBI officials. PW5 /complainant owned his complaint in their presence. He also handed over Rs.1 Lakh in denomination of Rs.1000/- currency notes. PW5 deposed that numbers of those currency notes were noted down vide Ex.PW5/D. He stated that some white colour powder was put on those currency notes on the direction of TLO. Prior to this, TLO had explained that anyone who would touch the said powdered currency CBI Case No. 70/2019 CBI vs. Sarup Singh Page 8 of 72 notes, his hand wash would turn pink. Mohd. Waseem (PW11) had touched the notes and his hand was turned pink. PW5 deposed that on TLO's direction, his personal search was taken by Mohd. Waseem. Except his mobile phone, nothing was in his possession. Upon further direction of TLO, Mohd. Waseem put powdered currency notes in right side pocket of PW5. PW5 deposed that introductory voice of Mohd Waseem and Pradeep Chauhan were taken in another DVR containing a new memory card after ensuring its blankness. He deposed that TLO instructed Mohd. Waseem to watch the transaction of bribe amount and hear the conversation as well. The TLO instructed Mohd. Waseem to give signal by giving a call on mobile phone of the TLO. Both PW5 as well as Mohd. Waseem were also instructed to give signal by rubbing their faces with both hands after bribe transaction was over. One kit was also taken before leaving the spot. Handing over memo of the same is Ex.PW5/E. Thereafter, all the members of the trap team left CBI office at about 2.15/2.30 p.m. for going to Keshav Puram metro station.
13. They reached there at about 3.45/4.00 p.m. TLO directed PW5 to make call to accused Sarup Singh on mobile which he made. The call was also recorded in the DVR. Accused Sarup Singh asked PW5 to come to Seven Heaven Banquet Hall. TLO again briefed PW5 to meet accused Sarup Singh and hand over the bribe amount on his CBI Case No. 70/2019 CBI vs. Sarup Singh Page 9 of 72 specific demand to him or to any other person. He deposed that TLO again reminded him of how to make the signal and also that if he was unable to give signal by making call or by rubbing his face, he could give signal by switching on parking indicators of his car. DVR was also handed over to him in switched on mode which he kept in his left side pocket of pant. He and shadow witness Mohd. Waseem were directed to go to Seven Heaven Banquet Hall. PW5 deposed that his friend Firoz was allowed to join them in the trap. Other team members including Pradeep Kumar took suitable positions.
14. He deposed that at about 4.30 p.m., accused Sarup Singh alongwith Ct. Roshan Gujjar came at Seven Heaven Banquet Hall on a motorcycle. They directed PW5's driver and other person to get down from the car and thus the driver, Mohd. Waseem and his friend Firoz got down from the car and stood nearby. Thereafter, accused Sarup Singh and Ct. Roshan Gujjar sat inside his car and they had a conversation regarding renovation of the canteen. PW-5 deposed that both Sarup Singh and Ct. Roshan Gujjar assured him that after giving bribe amount, he would not face any problem in the renovation work. He stated that to satisfy him about the assurance, accused Sarup Singh made call to the SHO PS Keshav Puram and told him that someone wanted to meet him. Thereafter, accused told PW5 that SHO would come after half an hour to the PS and they would go there. PW5 CBI Case No. 70/2019 CBI vs. Sarup Singh Page 10 of 72 deposed that on specific demand by accused Sarup Singh, he handed over the bribe amount from his right hand to him which were kept in the pocket of the pant. He further deposed that accused Sarup Singh, after accepting the bribe amount, counted the same and told that they were complete. Accused Sarup Singh and Ct. Roshan Gujjar demanded one envelope to keep the bribe amount but same was not available with PW5. Thereafter, Ct. Roshan left from there on the motorcycle. PW5 asked his driver to come inside and after the driver sat in the car, he asked him to take the car to PS Keshav Puram. Firoz and Mohd. Waseem were left at the spot. PW5 alongwith accused and his driver reached the said PS.
15. Deposing further, PW5 stated that after reaching the PS, accused Sarup Singh went inside to meet the SHO whereas he remained outside. SHO was not available there. PW5 kept on waiting for him outside his office. He deposed that the DVR got switched off. He does not know how it got switched off. He made call to TLO and informed him about the same whereupon TLO asked him to record further conversation in his mobile phone. Thus PW5 switched on voice recorder of his mobile phone. SHO PS Keshav Puram also came in the meantime. PW5 entered in the office to meet him. He deposed that accused Sarup Singh introduced him with the SHO. Thereafter, PW5 had a discussion with the SHO regarding renovation of the canteen CBI Case No. 70/2019 CBI vs. Sarup Singh Page 11 of 72 and construction of basement. PW5 told the SHO that he had an order from Hon'ble High Court of Delhi regarding renovation of his canteen which he showed to the SHO and SHO asked him to wait outside. Sarup Singh was also present there. After some time accused Sarup Singh came out from the office of SHO. PW5 saw accused Sarup Singh as well as Ct. Roshan Gujjar coming out of the gate of the PS. Accused told PW5 that SHO was demanding Rs.8 Lakhs for permission to dig the land for basement. Thereafter, PW5 and accused left in his car and reached Laxmi Narayan Mandir near PS Keshav Puram. On reaching there, PW5 switched on the indicators of his car indicating that bribe transaction was complete. He deposed that immediately CBI team which was waiting there rushed towards his car. CBI officials opened the gate adjoining the driver seat. Thereafter, accused Sarup Singh said, "tune marwa diya" (you have got me trapped). SI Manish caught hold of right hand of accused and Insp. Arjun Singh caught hold of left hand of the accused. He deposed that DVR was taken from him and switched off. Thereafter, solution of sodium carbonate and water was prepared and right hand wash of accused Sarup Singh was treated with the same and colour of the solution turned pink. The pink coloured solution was transferred into glass bottle and the bottle was labelled, sealed and signed by independent witnesses and TLO. PW5 identified the said bottle. Thereafter, the left hand wash taken in similar manner. PW5 identified CBI Case No. 70/2019 CBI vs. Sarup Singh Page 12 of 72 the same also.
16. PW5 deposed that independent witness Pradeep Kumar recovered the bribe amount from the back side of 'Khaki' shirt of accused Sarup Singh on the direction of the TLO. He tallied the numbers of the currency notes from Annexure-A which was marked as Ex.PW5/D. The currency notes tallied in toto. The envelope containing the bribe amount is Ex. PW5/F and the recovered bribe amount is Ex.PW5/G (Colly.). Rough site plan of bribe transaction Ex.PW5/H and rough site plan of recovery Ex.PW5/I were prepared by Insp. S.P. Singh at the spot, which was signed by him, TLO Dy. SP Deepak, Insp. Raman Shukla, SI Manish and Insp. Arjun Singh. On being shown, the witness has identified the same as the one which was prepared at the spot.
17. PW5 further deposed that, thereafter, the trap team alongwith accused Sarup Singh left the spot for Shakur Pur (Delhi-34) for further interrogation and after reaching there, they sat in a shop. Accused Sarup Singh was asked to make a telephone call to SHO PS Keshav Puram to inform him that the amount has been received. He deposed that accused Sarup Singh had refused to make a call to SHO PS Keshav Puram stating that he alone is sufficient and that he is not going to make a call to SHO Keshav Puram and CBI official may do whatever they want. Thereafter, the trap team alongwith accused CBI Case No. 70/2019 CBI vs. Sarup Singh Page 13 of 72 Sarup Singh left Shakur Pur and reached Laxmi Narain temple. There accused Sarup Singh was asked to make a telephone to Ct. Roshan Gujjar to ascertain the role of his involvement in the bribe transaction. On the direction of TLO, PW-5 made a telephone call to Ct. Roshan Gujjar but his mobile phone was found switched off. PW5 further deposed that thereafter, on the direction of TLO, he himself reached PS Keshav Puram to bring Ct. Roshan Gujjar. After reaching PS Keshav Puram, he found Ct. Roshan Gujjar coming out of PS and while talking with him, he took him towards Laxmi Narain Mandir where CBI trap team was waiting and on seeing them, Ct. Roshan Gujjar pushed PW-5 and ran away towards PS Keshav Puram. CBI trap team also followed Ct. Roshan Gujjar to PS but Ct. Roshan Gujjar has left PS Keshav Puram from another exit gate. CBI trap team entered the PS Keshav Puram and inquired about Ct. Roshan Gujjar but Duty Officer told that his mobile phone was switched off. Thereafter, the CBI trap team searched the place of barrack of PS Keshav Puram where accused Sarup Singh was residing but nothing incriminating was found. Thereafter, GD entry was made in PS Keshav Puram regarding the arrest of the accused Sarup Singh, search of the barrack and deposit of pistol recovered from accused Sarup Singh during trap proceeding. PW5 further deposed that thereafter wash of the 'baniyan' (vest) of accused Sarup Singh was taken in the solution of sodium carbonate and water. The said solution turned pink. Thereafter, the CBI Case No. 70/2019 CBI vs. Sarup Singh Page 14 of 72 said solution was put into two glass bottles and the bottles were sealed and signed by independent witnesses and TLO. The 'baniyan'(vest) of accused Sarup Singh was sealed in an envelope and the said envelope was signed by independent witnesses and TLO. The baniyan (vest) of accused Sarup Singh is Ex.PW9/H. PW5 identified the same as the 'baniyan' (vest) of accused Sarup Singh which was sealed.
18. PW5 has further deposed that on reaching back CBI office at about 11.15-11.30 p.m, 4 GB memory card was taken out from the DVR and the same was sealed and signed by independent witnesses and the TLO and marked as "Q-2". Thereafter, a new memory card was arranged and put into the DVR and the voice of accused Sarup Singh was recorded in the same. Thereafter, the memory card was taken out from the DVR and the same was sealed and signed by independent witnesses and the TLO and marked as "S-1". The DVR used during the trap proceedings was also kept in an envelope and the same was sealed and signed by independent witnesses. PW5 has identified the DVR which was used during the trap proceedings. The brown coloured envelope in which the DVR used during the trap proceedings was kept and sealed is Ex.PW9/I. A silver coloured DVR make Sony is Ex.PW9/J. Mobile phone of complainant make Panasonic (Eluga) is Ex.PW9/L and was kept in a brown coloured envelope Ex.PW9/K after taking out the SIM from the same and the same was sealed and signed CBI Case No. 70/2019 CBI vs. Sarup Singh Page 15 of 72 by the independent witnesses and the TLO. PW5 has identified the same as the one which was used during the trap proceedings. He further deposed that the trap proceedings were recorded in a recovery memo Ex.PW9/A. Thereafter, the CBI seal used during the trap proceedings was handed over to independent witness Pradeep Kumar Chauhan for keeping the same in safe custody and to produce the same as and when required by the court. He further deposed that he was called by CBI to identify the voices of accused Sarup Singh and Ct. Roshan Gujjar etc. The transcription-cum-voice identification memo is Ex.PW9/C. Hindi Anuvad "Q-1" Ex.PW8/E (colly.) and Hindi Anuvad "Q-2" Ex.PW8/F (Colly.) were prepared and signed by him. PW-5 identified various voices in the audio files. He specifically identified voice of accused HC Sarup Singh in the audio recordings. He also told that the canteen was initially allotted to his father-in-law and after his death, his mother-in-law became the owner and who gave him authority (Ex. PW6/A) to renovate the canteen.
19. PW-5 was subjected to a lengthy cross-examination. In the said cross-examination, PW5 denied that he had made the present complaint to blackmail or extort money from accused. He denied that he was in the habit of making false complaints against police officials or government officials.
20. He denied the suggestion that he was trying to grab public CBI Case No. 70/2019 CBI vs. Sarup Singh Page 16 of 72 land adjoining his canteen and as SHO had stopped construction of basement in the said canteen, he had filed false complaint against the accused. He stated that he was told to try that SHO concerned personally accepted the bribe money. He denied the suggestion that at Shakurpur office, CBI officials pressurized accused to handover bribe money to the SHO personally to which accused refused.
21. PW5 denied the suggestion that baniyan of accused was seized from the barrack of the accused at the PS Keshav Puram. He denied that the trap had failed and, therefore, to falsely implicate the accused, the baniyan was taken from the barrack. He denied that his handwash was taken at PS Keshav Puram and same was later on represented falsely to be handwash of accused. He also denied that no money was recovered from accused. He denied that accused never demanded any money or accepted the same. He denied that it was infact Ct. Roshan Gujjar who had received the money from PW-5 or that PW-5 instructed Ct. Roshan Gujjar to hand over the money to the SHO.
22. PW9 Sh. Pradeep Kumar Chauhan is UDC, Chief Engineer Drainage Project-I, Delhi Jal Board and he is the first independent witness. He has deposed about the verification proceedings carried out in his presence on 27/10/2016. He has deposed on the lines of the case of prosecution and as per the version CBI Case No. 70/2019 CBI vs. Sarup Singh Page 17 of 72 given by the complainant (PW5). He has deposed about visiting Seven Heaven Banquet Hall with complainant on 27/10/2016 when the complainant was carrying the DVR fitted with micro SD card in switched on position. He deposed that at about 7.00 p.m., accused Sarup Singh alongwith one other person came at Seven Heaven Banquet Hall. He further deposed that the conversation held between accused Sarup Singh and PW5 was recorded in the said DVR. He and PW5 came back to Raman Shukla and the said DVR was switched off. He deposed that PW5 Dharmender Dabas informed Raman Shukla that accused Sarup Singh had demanded Rs.2 Lakhs for allowing him to renovate his canteen. He has also deposed about hearing the said recorded conversation in CBI office which corroborated the version narrated by the complainant and confirmed the demand of bribe amount of Rs. 2 Lakhs from the complainant was made by the accused Sarup. He has identified his signature on the verification memo dated 27/10/2016 Ex. PW5/B. He has also deposed that DVR alongwith memory card was kept in an envelope and sealed with CBI seal. The said envelope was signed by him, PW5 and Insp.Raman Shukla. He has identified the said micro SD card and brown coloured envelope bearing his signatures in the Court during his deposition. He has identified the DVR make Sony fitted with micro SD card 4 GB make Kingston as the one in which the recording was done during the verification proceedings on 27.10.2016. He has also identified his CBI Case No. 70/2019 CBI vs. Sarup Singh Page 18 of 72 introductory voice contained in micro SD card (Q1) Ex. PW8/B-3 when the same was played in the Court. He has also identified the voice of PW5 and accused Sarup Singh when the recording was played in the court that the said recording was pertaining to the conversation held between the complainant and accused Sarup Singh during the verification proceedings.
23. He has also deposed about joining the trap proceedings on 28.10.2016 and has deposed on the lines of PW5. He deposed that Rs.1 Lakh treated with phenolphthalein powder was kept in the right side pant pocket of PW5 by him. After completion of all the preparation, TLO told them for going to Keshav Puram. TLO had told Md. Waseem to give signal by rubbing his face or by giving missed call after accused Sarup Singh was apprehended. He deposed about recovery of bribe amount from inside the backside of the shirt of accused Sarup Singh. He has proved the recovery memo dated 28.10.2016 Ex.PW9/A. He has identified the rough site plans Ex.PW5/H and Ex.PW5/I. He has also proved the arrest-cum-personal search memo dated 28.10.2016 Ex.PW9/B and transcription-cum-voice identification memo dated 02.12.2016 Ex.PW9/C. He has identified the Hindi Anuvad Q-1 and Hindi Anuvad Q-2 Ex.PW8/E (Colly.) and Ex.PW8/F (Colly.) respectively. He has also deposed that right hand wash of accused Sarup Singh was taken and the same was treated with sodium CBI Case No. 70/2019 CBI vs. Sarup Singh Page 19 of 72 carbonate powder, whereupon the colour of the solution turned pink. The said pink colour solution was kept in two bottles i.e. "RHW-1"
Ex.PW9/D-1 and "RHW-2" Ex.PW9/D-2. PW9 further deposed that left hand wash of accused Sarup Singh was also taken in the similar manner. The said pink colour solution was also kept in two bottles "LHW-1" Ex.PW9/E-1 and "LHW-2" Ex.PW9/E-2. He has further deposed that the baniyan (vest) wash of accused was also taken and the same was kept in two bottles "BBSW-1" Ex.PW9/F-1 and "BBSW- 2" Ex.PW9/F-2.
24. Deposing further PW9 stated that the recovered bribe amount of Rs.1 Lakh was sealed at the spot in a brown envelope and the 'baniyan' (vest) of accused Sarup Singh was sealed in a green coloured envelope. The green coloured envelope was Ex.PW9/G and 'baniyan' (vest) was Ex.PW9/H. He has identified the memory card make "Simmtronics" Ex.PW8/C-5 as the same in which recording pertained to the demand and acceptance of money was made. He has also identified his introductory voice and introductory voice of independent witness Md. Waseem, and voices of accused Sarup Singh and PW5 Dharmender Dabas when the memory card Ex.PW8/C-5 was played in the court.
25. He was also subjected to an extensive cross-examination. In his cross-examination, he denied the suggestion that accused did not CBI Case No. 70/2019 CBI vs. Sarup Singh Page 20 of 72 demand any money or he did not accept the same or that it was not recovered from him.
26. PW11 Mohd. Waseem, LDC in Delhi Jal Board is the second independent witness and he has deposed about joining of the trap proceedings in this case on 28.10.2016. He has deposed mostly on the same lines as PW5 and PW9. He has identified his signatures on each page of Annexure A in which distinctive numbers of G.C. notes of Rs. One lakh in the denomination of Rs.1000/- each were noted. He further deposed that he was directed to act as a shadow witness and to remain close to the complainant (PW5) and accused Sarup Singh. He has identified his signatures on handing over memo Ex.PW5/E on all pages. He has identified his signatures on bottles marked as "RHW-1"
Ex.PW9/D-1 and "RHW-2" Ex.PW9/D-2. He has also identified his signatures on the bottles marked as "LHW-1" Ex.PW9/E-1 and "LHW- 2" Ex.PW9/E-2. He has also deposed about recovering the bribe money from inside the backside of shirt of accused Sarup Singh on the direction of TLO. He has further deposed about tallying the said recovered currency notes with those mentioned in Annexure A by him and PW9 Pradeep Kumar Chauhan and the same were found tallied in toto. He has identified the currency notes Ex.PW5/G(Colly.) as the bribe amount which was recovered from the accused Sarup Singh. He has also identified his signatures at points C on the site plans CBI Case No. 70/2019 CBI vs. Sarup Singh Page 21 of 72 pertaining to Seven Heaven Banquet Hall Ex.PW5/H and Laxmi Narain Temple ExPW5/I. PW11 also identified the bottles Ex.PW9/F-1 and Ex.PW9/F-2 wherein "baniyan" (vest) wash of accused Sarup Singh was taken. He has also identified his signatures on the envelope Ex.PW9/G in which "baniyan" of accused was kept and on the "baniyan" (vest) Ex.PW9/H.
27. In his cross-examination, he stated that DVR was checked by playing to know whether it was blank or not and no recording was found therein. He told that he saw Firoz (PW4) when they were about to leave CBI office. He denied the suggestion that complainant had sent Rs.1 lakh cash loan to the SHO PS Keshav Puram through Ct. Roshan Gujjar.
28. PW4 Sh. Firoz is a contractor and does civil construction work. He deposed that on 28.10.2016, he was doing the renovation work in the canteen of one Dharmender Dabas (PW5) known to him, at DSIIDC Complex, Keshav Puram. On that day he made a call to Dharmender Dabas as some of his payment was due for the aforesaid work but he told him to reach CBI Head Quarter, CGO Complex. He further deposed that after reaching there, PW5 told him to wait for some time and also told him that they would go to the site after some time. Thereafter, on that day at 4.30 p.m., he alongwith PW5, one Praveen (driver of PW5), one CBI Insp. Raman Shukla and one person CBI Case No. 70/2019 CBI vs. Sarup Singh Page 22 of 72 namely Waseem reached Seven Heaven Banquet Hall, DSIIDC Complex, Keshav Puram in Honda City Car of Dharmender Dabas. On reaching there, two police officials, namely HC Sarup Singh and Roshan Gujjar came to the spot on motorcycle and came to their vehicle. He further deposed that they asked PW5 to ask other persons sitting in the car to get down from the car and stand outside. He alongwith driver Praveen and Waseem got down from the car and stood near the same. He further deposed that Insp. Raman Shukla of CBI had got down from the car of PW5 just before the start of DSIIDC Complex, Keshav Puram prior to their parking the car near Seven Heaven Banquet Hall.
29. Deposing further he stated that the two police official namely accused Sarup Singh and Roshan Gujjar sat in the car of PW5 Dharmender Dabas for about half an hour. After about half an hour, PW5 called driver Praveen and told him to turn the car. Thereafter, one police official namely Roshan Gujjar came outside the car and went to the motorcycle. He further deposed that said Honda City was driven away by driver Praveen of PW5 and HC Sarup Singh was inside the same. They two i.e. he and Waseem were left there. He asked Roshan Gujjar as to what they should do, he told them to come to police station. Thereafter, Ct. Roshan Gujjar left on the said motorcycle. Thereafter, PW5 called him to come to the PS and he CBI Case No. 70/2019 CBI vs. Sarup Singh Page 23 of 72 alongwith Waseem reached PS Keshav Puram and found that accused Sarup Singh was arrested by CBI.
30. In cross-examination, he denied that he had not joined the proceedings on 28.10.2016.
31. PW10 Sh. Praveen was the driver of PW5 Dharmender Dabas. He deposed that on 27.10.2016, he alongwith PW5, one Jal Board Officer and one CBI officer were in a vehicle near Seven Heaven Banquet Hall. He deposed that at about 7.05 p.m., accused Sarup Singh and Ct. Dinesh came there. Thereafter, PW5 got down from the vehicle and started conversing with accused Sarup Singh and Ct. Dinesh. He alongwith Jal Board Officer and CBI officer remained seated in the vehicle. He deposed that he did not hear the conversation between PW5 and accused Sarup Singh and Ct. Dinesh. Thereafter, accused Sarup Singh, Ct. Dinesh and PW5 came back to the vehicle and they left for CBI office, Lodhi Road.
32. Deposing further he stated that on 28.10.2016 at about 2.30 p.m., he alongwith PW5, Firoz and one CBI officer left CBI office in complainant's vehicle and at about 3.50 p.m., they reached at Keshav Puram metro station. Thereafter, on the direction of PW5 Dharmender Dabas, they left for Seven Heaven Banquet Hall and reached there at about 4.15 p.m. He further deposed that at about 4.30 p.m., accused CBI Case No. 70/2019 CBI vs. Sarup Singh Page 24 of 72 Sarup Singh and Ct. Roshan in police uniform came at Seven Heaven Banquet Hall on a motorcycle.
33. Thereafter accused Sarup Singh asked him (driver Praveen), Firoz and CBI officer to get down from the vehicle and accused Sarup Singh and Ct. Roshan sat in the complainant's car. After about 15/20 minutes, Ct. Roshan got down from the vehicle and left the spot on the motorcycle. He further deposed that thereafter PW5 asked him to drive the vehicle to PS Keshav Puram. After reaching PS Keshav Puram, PW5 Dharmender Dabas and accused Sarup Singh got down from the vehicle and entered into the PS Keshav Puram and after about one hour came out from the PS. PW5 asked him to drive the vehicle to Laxmi Narain temple and after reaching there PW5 directed him to switch ON the indicator of the vehicle, which he accordingly did. As soon as the indicator switched ON, some people came rushing towards our car and on the direction of one of them, he came out of the car and they entered the car. Thereafter, one of the CBI officer directed him to drive the said car and follow their Ambassdor car. Following the said Ambassador car, they reached Shakurpur and from there went to an office situated in Shakurpur. Thereafter, at about 11.00/11.30 p.m., they reached CBI head office, Lodhi Road, Delhi.
34. In cross-examination, he denied the suggestion that CBI CBI Case No. 70/2019 CBI vs. Sarup Singh Page 25 of 72 officials had not gone to Laxmi Narain temple.
35. PW13 Insp. Raman Kumar Shukla was the officer who was entrusted with the task of verifying the complaint of the complainant. He has deposed that on 27.10.2016, complaint Ex. PW5/A of Dharmender Dabas was marked to him for verification by S.P. concerned. He has further deposed about joining of PW9 Pradeep Kumar Chauhan as independent witness, arranging of DVR, 4 GB micro SD card make Kingston and recording of introductory voice of the said witness in the memory card through DVR during verification proceedings. He has also deposed about visiting Seven Heaven Banquet Hall near Keshav Puram for conducting verification proceedings along with complainant Dharmender Dabas and PW9 Pradeep Kumar Chauhan. He has further deposed about the narration of complainant regarding the negotiation of bribe amount with the accused and also about hearing the recorded conversation which confirmed the demand of Rs. 2 Lakhs by accused Sarup Singh for allowing him to renovate his canteen. It was also heard that accused Sarup Singh was demanded bribe on behalf of SHO, PS Keshav Puram. He has also deposed about sealing the DVR fitted with memory card was marked as "Q-1" with brass seal. The CBI seal was given to independent witness Pradeep Kumar Chauhan with the direction to produce the same tomorrow i.e. on 28.10.2016. He has CBI Case No. 70/2019 CBI vs. Sarup Singh Page 26 of 72 proved the verification memo Ex. PW5/B prepared by him vide which he recommended for registration of a regular case against accused Sarup Singh. The FIR was Ex. PW5/C. He has identified in his testimony the DVR make Sony marked "Q-1" fitted with Kingston make 4 GB micro SD card as the one in which the recording was done during the verification proceedings on 27.10.2016. He has also identified the introductory voice of independent witness Pradeep Kumar Chauhan and the voices of complainant and accused Sarup Singh pertaining to the conversation between them during the verification proceedings when the recording was played in the court.
36. PW13 has also deposed about joining the trap proceedings on 28.10.2016 under the supervision of DSP Deepak Gaur (TLO) and has deposed on the lines of other trap team members.
37. He was cross-examined on the aspect that DVR was not properly checked to be blank, at the time of verification proceedings. He told that recording in the DVR was made in the DVR itself and not in the memory card and they continued with it. He too denied that accused was pressurized in the shop/office at Shakurpur to handover bribe amount to SHO PS Keshav Puram which accused refused. He further denied that after this refusal of accused, he was pressurized to call Ct. Roshan Gujjar and accused again refused to do so. He denied that after these refusals, they decided to go to PS Keshav Puram and CBI Case No. 70/2019 CBI vs. Sarup Singh Page 27 of 72 to pressurize Ct. Roshan to give money to the SHO. He denied that when the bribe amount could not be handed over to SHO, the same was planted upon the accused. He also denied that baniyan of accused was taken from his barrack and falsely planted in the case. He denied that accused was pressurized to give his voice sample and for this reason, no audio or video recording was made of the said process.
38. PW19 Deepak Gaur, DSP, was the Trap Laying Officer (TLO) of CBI. He has deposed that on 28.10.2016, he received FIR Ex. PW5/C, which was marked to him for laying a trap by his S.P. He has deposed about what steps were taken by him and what proceedings were carried out and how the trap was laid. He has also deposed as per the case of prosecution on all material aspects and has corroborated the version of other prosecution witnesses qua pre- trap, trap and recovery proceedings. He proved various documents prepared during investigation. He told that phenolphthalein powder smeared currency notes were put in pocket of complainant by Mohd. Waseem. However, later on, he corrected the said statement and told that it was Pradeep Chauhan who had done so. He deposed in detail about the trap proceedings.
39. In his cross-examination, he could not show any document showing the time when copy of FIR was sent to learned Special Judge, CBI Case No. 70/2019 CBI vs. Sarup Singh Page 28 of 72 CBI, Rohini, but told that it was available with the learned Special Judge when accused was produced before him on the next day after his arrest. He told that the conversation which took place at office at Shakurpur was not audio recorded. He denied the suggestion that same was deliberately not recorded to avoid the contents of conversation between accused and CBI team members. He also admitted that owner of the said shop /office was not joined in the proceedings. He denied the suggestion that he pressurized accused to give bribe amount to the SHO. He denied that when accused refused to take the bribe money to SHO, he pressurized accused to call Ct. Roshan Gujjar but again accused refused. He denied that he did not follow many provisions of CBI Crime Manual. He denied the suggestion that SHO was given clean chit malafidely by the CBI.
40. PW18 Insp. Sanjay Upadhyay of CBI, ACB is the part Investigating Officer of the present case. He has deposed about marking of investigation of the present case to him on 04/11/2016 by S.P. concerned and receiving of the case file containing the relevant documents. He deposed about sending of mobile phone of the complainant to CFSL, Chandigarh. He also collected the exhibits from CFSL, Delhi i.e. copy of Q-1, Q-2 along with voice related exhibits i.e. Q-1, Q-2, S-1 and other three copies and the said exhibits were deposited in Malkhana, CBI. He has also deposed about preparation CBI Case No. 70/2019 CBI vs. Sarup Singh Page 29 of 72 of transcription-cum-voice identification memo Ex.PW9/C, transaction of Q-1 Ex.PW8/E and transcription of Q-2 Ex.PW8/F. He collected the expert opinion of washes from CFSL Ex.PW12/B. Thereafter, the exhibits Q-1, Q-2 and S-1 were sent to CFSL, Delhi for analysis and expert opinion Ex.PW8/A. He has also collected the expert opinion on voice from CFSL. The Forensic Voice Examination report is Ex.PW8/H. He deposed about receiving of CDR and photocopy of CAF alongwith certificate U/s 65-B of Indian Evidence Act Ex.PW1/D (Colly.), original CAF Ex.PW1/B in respect of mobile phone number 8010352913 of accused Sarup Singh from Alternate Nodal Officer Reliance vide covering letter already Ex.PW1/C. The abovesaid CAF was taken into possession vide production-cum-seizure memo already Ex.PW1/A. He has also deposed about receiving of CDR already Ex.PW3/B (Colly.) and photocopy of CAF Ex.PW3/D (Colly.) in respect of mobile phone number 9899555436 of PW5 Dharmender Dabas from Nodal Officer Bharti Airtel Ltd. vide covering letter already Ex.PW3/A. He has also deposed about recording of statements of witnesses and collection of documents for the purpose of investigation. He further deposed about receiving of bio-data of accused Sarup Singh and sanction for his prosecution. After completion of investigation, he prepared the charge-sheet and filed in the court on 31.12.2016.
41. In cross-examination, he explained the reason for sending CBI Case No. 70/2019 CBI vs. Sarup Singh Page 30 of 72 mobile phone of complainant to CFSL, Chandigarh. He told that CFSL, Delhi had returned the said mobile phone and, therefore, it was sent to Chandigarh. The endorsement of official of CFSL, Delhi is Ex. PW18/PX1. He also told that he had sent draft sanction order to the sanctioning authority.
42. PW6 Ms. Meenu Kapoor is mother-in-law of PW5 and she deposed that she was owner of the canteen in DSIDC complex, Lawrence Road as the same was alloted to her husband. She deposed that in July, 2016 she authorized her son-in-law PW5 Dharmender Dabas to renovate the said canteen and start some work there. The said authority letter is Ex.PW6/A.
43. Now we come to evidence of two police officials who were also examined by the prosecution but they are those who were allegedly with the accused.
44. PW17 Ct. Dinesh was, as per chargesheet, with the accused at the time of verification proceedings on 27.10.2016. He deposed that on 27.10.2016, he alongwith accused HC Sarup Singh were on patrolling duty in their beat when accused Sarup Singh told him to go to Seven Heaven Banquet Hall to meet one of his friends. After reaching Seven Heaven Banquet Hall, one person was present outside the said banquet with whom accused Sarup Singh had shaken CBI Case No. 70/2019 CBI vs. Sarup Singh Page 31 of 72 hands. He did not know the said person. He further deposed that accused Sarup Singh talked with the said person for about 20-25 minutes but he was not aware what they were talking, as he was standing at a distance of 6-7 feet near their motorcycle. There is no cross-examination.
45. PW16 Ct. Roshan is the person who had come alongwith accused at the time of trap on 28.10.2016. He deposed that on 28.10.2016, when he alongwith HC Sarup Singh were on patrolling duty at Industrial area, Lawrence Road, Delhi, while passing by Seven Heaven Banquet Hall, they found a car parked at distance of 50-60 feet from the said banquet. He further deposed that on the direction of HC Sarup Singh, they got down from the motorcycle and went inside the said car. One person namely Dharmender Dabas was already sitting inside the said car. He further stated that after some time, he came out of the car but PW5 called him back and accused Sarup Singh handed over one dak file to him and told him that they are coming. Thereafter, he came back to PS while accused Sarup Singh remained in the said car with PW5. He further deposed that after staying for 20-25 minutes at PS Keshav Puram, he again went to his beat area in PS Keshav Puram. Thereafter, at about 8.30 p.m., PW5 met him at the gate of PS Keshav Puram. PW5 took him at some distance from the gate outside the PS where 10-15 other persons were present and they pointed CBI Case No. 70/2019 CBI vs. Sarup Singh Page 32 of 72 towards him that he was the person who had made him (PW5) sit in the car and thereafter, he (PW16) ran away. He stated that he was not aware of any other fact.
46. In cross-examination, he denied the suggestion that PW- 5/complainant had given him some money and told him to hand over the same to the SHO.
REGARDING SANCTION
47. PW2 Sh. Milind Mahadeo Dumbere, DCP, North-West District, Delhi, was the competent authority to grant sanction for prosecution at the relevant point of time and has proved his sanction order u/s 19 of Prevention of Corruption Act, 1988 dated 26/12/2016 as Ex. PW2/A (Colly.) for prosecution of accused Sarup Singh. He has also proved the suspension order dated 01.11.2016 as Ex.PW2/B against accused Sarup Singh. He has also proved the forwarding letter dated 24.11.2016 through which he had forwarded the suspension order and bio-data in respect of HC Sarup Singh. The forwarding letter alongwith bio-data is Ex.PW2/C (Colly.).
48. In cross-examination, he told that he had not received any draft sanction order from CBI. He denied the suggestion that he had granted sanction in mechanical manner without application of mind. CBI Case No. 70/2019 CBI vs. Sarup Singh Page 33 of 72 CFSL EXPERTS
49. PW8 Dr. Subrat Kumar Choudhary, Senior Scientific Officer, Grade-II (Physics), CFSL, New Delhi was the Forensic Expert who had examined voice sample of accused Sarup Singh with his questioned voice recordings. He has proved his forensic voice examination report dated 23.12.2016 as Ex.PW8/H (Colly.) and has deposed that on examination, specimen voice of Sarup Singh contained in Ex. S-1 tallied with his questioned voices contained in Ex. Q-1 & Ex. Q-2. He further told that the recordings contained in the said exhibits were found continuous and no tampering was detected. The transcript of Ex.Q-1 is Ex.PW8/E (Colly.) and that of Ex.Q-2 is Ex.PW8/F (Colly.).
50. This witness was also subjected to a lengthy cross- examination. The effort of the defence was to show that the report is incorrect and that it reflected a shaky opinion.
51. PW12 Ms. Deepti Bhargava is Senior Scientific Officer, Grade-II (Chemistry), Block IV, CGO Complex, Lodhi Road, New Delhi and she was Forensic Expert from Chemistry division. She had examined left and right handwashes of accused Sarup Singh. She gave report Ex.PW12/B. She deposed that upon chemical examination of the handwashes, same gave positive tests for the presence of CBI Case No. 70/2019 CBI vs. Sarup Singh Page 34 of 72 phenolphthalein. She has also identified the said exhibits correctly in her testimony.
FORMAL WITNESSES
52. PW1 Yogesh Tripathi is the Alternate Nodal Officer, Reliance Communication Ltd. He has proved the production-cum- seizure memo dated 03.12.2016 as Ex.PW1/A vide which original Customer Application Form (CAF) with respect to mobile no. 8010352913 in the name of accused Sarup Singh alongwith ID documents were provided to the CBI. He has also proved the CAF with the ID proof documents as Ex.PW1/B (Colly.). He has also proved the letter dated 30.11.2016 as Ex.PW1/C vide which he had provided the Call Detail Record (CDR) of the abovesaid mobile number for the period from 27.10.2016 to 28.10.2016 and certificate u/s 65-B of Indian Evidence Act and the CAF. The CDR and the certificate U/s 65-B are Ex.PW1/D (Colly.).
53. In cross-examination, he told that the server of the company was installed at Mumbai Head Office. He showed his authority letters to issue certificate u/s 65-B of Indian Evidence Act which is Ex. PW1/DA and DB.
54. PW3 Chandra Shekhar was the Nodal Officer, Bharti Airtel Limited. He has proved the covering letter issued by him as a Nodal CBI Case No. 70/2019 CBI vs. Sarup Singh Page 35 of 72 Officer to Insp. Sanjay Upadhyaya as Ex.PW3/A. He has also proved the CDR in respect of mobile no. 9899555436 for the period from 27.10.2016 to 28.10.2016 which has been certified by him as Ex.PW3/B (Colly.) and certificate U/s 65-B of Indian Evidence Act dated 06.12.2016 issued by him as Ex.PW3/C, copy of CAF pertaining to mobile number 9899555436 in the name of Dharmender Dabas as Ex.PW3/D.
55. In cross-examination, he told that the IT Department of the company had the overall control over the server. But he had limited access to retrieve the data using his user name and password being Nodal Officer.
56. PW7 Ct. Seema was posted as General Diary Writer at PS Keshav Puram in October, 2016. She proved the certified copy of GD entry no.32 in Roznamcha 'A' as Ex.PW7/A. She deposed that HC Sarup Singh was posted in the Beat in Industrial Area, Lawrence Road, Keshav Puram in October, 2016.
57. In cross-examination, it has come that there were CCTV cameras installed in the police station.
58. PW14 Ct. Makhan Lal and PW15 SI Mahender Pratap deposed in similar lines that they came to know that accused HC Sarup Singh was caught by CBI team for demanding and accepting CBI Case No. 70/2019 CBI vs. Sarup Singh Page 36 of 72 bribe.
STATEMENT OF ACCUSED
59. Thereafter, statement of accused u/s 313 CrPC was recorded and all the incriminating circumstances appearing on record were put to the accused which he denied to be true. He pleaded that he had been falsely implicated. It will be appropriate to reproduce the plea of the accused. The accused took the following stand:-
"I have been falsely implicated in this case as I have not made demand of any money from the complainant nor recovery of any bribe money has been effected from me. On the date of the alleged trap proceedings on 28/10/2016 after the CBI team arrested me at Laxmi Narain Mandir near PS Keshav Puram, took me to shop no. 875 in H Block in Shakurpur, where the trap team pressurized me to take a bundle of currency notes to the SHO K.S.N. Subudhi and give it to him and on my refusal to do the same, I was pressurized to call Roshan Gujjar so that the said bundle of currency notes could be given to him so that he could take the same to SHO K.S.N. Subudhi. On my refusal to concede even that, on their said asking, the trap team realizing as having failed in pressurizing me to do their aforementioned demanded acts, from Shakurpur once again came back to Laxmi Narain Mandir from where yet another attempt was made to call Roshan Gujjar through the complainant and the trap team having not succeeded in the same, took me along with the complainant to PS Keshav CBI Case No. 70/2019 CBI vs. Sarup Singh Page 37 of 72 Puram, where the trap team being accompanied by police officials of PS Keshav Puram took me for the search of the barrack situated at first floor of PS Keshav Puram and from the almirah being used by me, my clothes were seized including baniyan (vest). Then I was brought to the SHO room wherein hand-wash of the complainant was taken and from the wash so taken, the solution was kept in six bottles and with the help of Ct Manjeet Singh, the said bottles were sealed. From the PS, I was brought to CBI office wherein forcibly and against my consent, my specimen voice was recorded. From the charge-sheet filed by the CBI, I came to know that they have falsely shown to have recovered the alleged currency notes from me at Laxmi Narain Mandir and further also wrongly shown to have taken my hand-wash of both the hands which is stated to have turned pinkish. I state that neither any recovery was made from me at Laxmi Narain Mandir nor any hand-wash of mine was taken over there. As regards the claim of the prosecution regarding taking the wash of the banian (vest) inside PS Keshav Puram,I state that the banian seized by the CBI during the search of my barrack was used and on which the pinkish solution obtained from the hand-wash of the complainant was sprinkled and the CBI team has wrongly imputed the said vest to be the one worn by me, on the alleged date of incident. Further, the entire story of the prosecution with regard to the demand by me is totally wrong. The recordings stated to have been made during the pre-trap and trap proceedings imputing to contain my voice are doctored, edited and manipulated. I was made a scapegoat when the trap team failed in their efforts to trap their target CBI Case No. 70/2019 CBI vs. Sarup Singh Page 38 of 72 SHO K.S.N. Subudhi."
DEFENCE WITNESSES
60. DW1 is Faimuddin Saifi. He is the owner of the office/shop at Shakurpur where the trap laying officers and accused had come for a short time. Prosecution had not sighted this person as a witness. Rather accused has examined him in his defence. DW1 deposed that he was having the said office at H-875, Shakurpur, Delhi-34 and it was be used for political activities. His elder brother was also using the said office in connection with his business. He deposed that on 28.10.2016, he received phone call from his friend Firoz (PW4) at about 7.00 p.m. and Firoz told him that he alongwith some of his known people would come to the said office to which DW1 acceded to. After about 10 minutes three vehicles came there in which 8-10 people were there which included Firoz as well as accused Sarup Singh. He deposed that those people took Sarup Singh to his office and started questioning him. Firoz told him (DW1) about those persons that they were CBI officials. DW1 deposed that those people were insisting upon accused Sarup Singh to accept money which was in a bundle of denomination of Rs.1000/- G.C. notes and to handover the same to the SHO. According to DW1, they were also insisting upon accused Sarup Singh to call Roshan Gujjar there. Accused Sarup Singh refused to do any such thing. Thereafter, all of them went away. CBI Case No. 70/2019 CBI vs. Sarup Singh Page 39 of 72
61. In cross-examination, DW1 has told that he had not made any complaint to any authority regarding conduct of CBI officials i.e. regarding insistence on their part upon accused to accept money etc.
62. DW2 is Ct. Rajesh. He deposed that on 28.10.2016, he was posted as constable at PS Keshav Puram. He deposed that on that day at about 3.08 p.m., when he was present in PS Keshav Puram, some CBI officials brought HC Sarup Singh, who was in police uniform, to the duty officer of PS Keshav Puram. He further deposed that on the asking of Duty officer, he took those CBI officials and Sarup Singh to the room of SI Mahinder Pratap at first floor in the PS Keshav Puram, which was also used by HC Sarup Singh for official purpose. He further deposed that in his presence, CBI officials searched the almirah of Sarup Singh kept in the said room and took out one black coloured bag containing some clothes and one white coloured vest. SI Mahinder was also present in the said room at that point of time. CBI officials took the said clothes from the bag in their possession and left the bag there. Thereafter, CBI officials took Sarup Singh in the room of SHO. Thereafter, DW2 left from there.
63. In his cross-examination, it has come that he had not brought any record showing that he was posted at PS Keshav Puram on 28.10.2016. DW2 also could not show any record showing that he was present in the PS at that point of time. It has come that he did not CBI Case No. 70/2019 CBI vs. Sarup Singh Page 40 of 72 make any complaint against CBI officials for seizing the clothes including vest of accused Sarup Singh.
64. DW3 Sh. M.A. Khan, OSD, CVC, Delhi produced one Circular bearing no. 73/12/2005 dated 15.12.2005 issued by CVC. Copy of the same is Ex.DW3/A.
65. DW4 HC Naresh produced duty roaster of the PS staff of 28.10.2016. Copy of the same is Ex.DW4/A.
66. In cross-examination, it is mentioned that name of Ct. Manjeet Singh is not mentioned and only his belt number is mentioned as 1667/NW. It has also come that the entries in Ex.DW4/A are not in his handwriting and are rather in handwriting of Chithha Munshi Ct. Manjeet.
67. DW5 is Ct. Manjeet Singh. He deposed that on 28.10.2016, he was working as Chithha Munshi at PS Keshav Puram. He pointed out that as per Ex.DW4/A i.e. Duty Roster, Ct. Rajesh (Belt no.1341/NW) was assigned duty in the malkhana.
68. He deposed that on that day, he had gone out of PS in connection with his personal work and he returned at about 8.30 p.m. At that time, he saw that there were 4-5 people sitting in the office of SHO who were later on told to him to be CBI officials. He told that CBI Case No. 70/2019 CBI vs. Sarup Singh Page 41 of 72 those people demanded match box from him. When he brought match box, he came to room of SHO. In the room, he saw that there were six quarter bottles, half filled with pink colour liquid and bottles were lying open. He deposed that CBI officials took match box from him, put the caps on the bottles and sealed the same after covering them with a cloth. He also saw that one of the CBI official took out one white colour vest from clothes lying there and told him to go out of the room and he came out. He also saw that there was one glass jug which was ¼ filled with pink colour liquid.
69. In his cross-examination, it has come that strength of constables present on 28.10.2016 is not mentioned in Ex.DW4/A. He denied suggestions of learned Prosecutor.
70. DW6 is Akshay Mehta. He had come from Sony India Pvt. Ltd. He was examined by the accused to clarify regarding functioning of DVR. DW6 deposed that whether any recording is there or not can be checked by pressing option button which displays whether any file was present in the DVR or not. He also said that for one audio recording, one file /docket number automatically gets prepared. He also told that in case said recording is stopped and another recording is made, it will automatically generate another file /docket number. He further informed that files are generated in sequential order qua the recordings made in the audio recorder.
CBI Case No. 70/2019 CBI vs. Sarup Singh Page 42 of 72
71. In his cross-examination, he told that he did not have any specialized qualification in audio recording. SUMBMISSIONS OF THE PARTIES
72. I have heard Sh. T.P. Negi, learned Senior PP for CBI and Sh. Manoranjan, learned Counsel for accused and have perused the record carefully. I have also perused the written submissions filed by both the sides.
73. Learned Sr. PP for CBI submitted that prosecution has proved all the ingredients of the offences U/s 7 and 13(2) r/w 13(1)(d) of PC Act, 1988. He emphasized that the three requirements of "demand", "acceptance", and "recovery" have been sufficiently established on the record.
74. Learned Sr. PP referred to evidence of PW13 Insp. Raman Kumar Shukla who had verified the complaint made by the complainant through proceedings Ex.PW5/A. During said verification, he submitted that the demand on the part of accused stood established.
75. He referred to testimonies of complainant (PW5) as well as other witnesses regarding trap proceedings. He argued that money was again demanded and received by the accused and same was recovered from him as well which facts have been established beyond CBI Case No. 70/2019 CBI vs. Sarup Singh Page 43 of 72 reasonable doubt. He pointed out that from handwash of accused, it is squarely proved that accused had received the currency notes which were laced with phenolphthalein powder. He thus concluded that accused has been proved guilty beyond reasonable doubt.
76. Per contra, learned Counsel for accused submitted that testimonies of various witnesses suffered from inherent improbabilities and discrepancies as well as contradictions which make those testimonies unreliable. Elaborating his submissions, learned Counsel referred to testimonies of complainant (PW5), public witness Pradeep Kumar Chauhan (PW9), public witness Mohd. Waseem (PW11), Firoz (PW4), Insp. Raman Kumar Shukla (PW13) and Deepak Gaur, TLO ( PW19); and pointed out various shortcomings therein.
77. Referring to evidence of PW5/complainant and other connected witnesses, learned Counsel submitted that the recovery of the currency notes from accused is highly doubtful. He highlighted that as per version of the witnesses, the money was recovered at Laxmi Narayan Mandir but the seizure memo was prepared much later on. He also pointed out that accused is shown to have been arrested at Laxmi Narayan Mandir but the arrest memo was prepared at Shakurpur. Regarding baniyan and its wash, learned Counsel stressed upon the fact that no witness has stated that accused was wearing any baniyan at the relevant time. He also doubted the version of witnesses as to CBI Case No. 70/2019 CBI vs. Sarup Singh Page 44 of 72 where money was kept by the accused in his clothes. He vehemently submitted that money could not be kept by the accused in the alleged manner. He demonstrated that money could not be kept by the accused upon his body in the baniyan and tucked in the belt. He argued that if it was so, the shirt should also have been seized as the shirt would also have been stained with the phenolphthalein powder.
78. He also laid emphasis on the aspect that prosecution has not explained the necessity of going to Shakurpur. He pointed out that the said fact was not even mentioned in the chargesheet but which came out only during evidence. He referred to testimony of DW1, who was owner of the office at Shakurpur where accused was taken by the CBI team, and argued that prosecution did not examine the said witness who was a material witness.
79. Learned Counsel also criticized the voice sample report given by PW8. He argued that the processes adopted by the investigating agency regarding examination of the voice recordings and voice samples were defective. He pointed out that no investigation copy of the CD was made which contained the voice recordings. He also expressed his doubts about the opinion given by PW8. He submitted that PW8 has not given a definite opinion about voice recognition, therefore, PW8's opinion should be rejected. CBI Case No. 70/2019 CBI vs. Sarup Singh Page 45 of 72
80. He also lamented the fact that while phone of complainant was sent to Chandigarh but the report about the said mobile phone was never brought on record. From this, learned Counsel wanted to draw inference that something important was being concealed from the court.
81. He countered submissions of learned Sr. PP for CBI and put forth that prosecution could not prove the essential ingredients of demand, acceptance and recovery from accused.
82. Learned Counsel for accused argued that the recordings relied upon by the prosecution cannot be considered as the same are not complete recordings. He alleged that these recordings were deleted and manipulated by the investigating agency. Regarding the transcripts, learned Counsel submitted that same were not exact reproduction of the recordings. He highlighted that the prosecution has not supplied the file name or number of the audio recordings but has only specified date and time which shows manipulation. He pointed out that there are different versions as to how the transcripts were prepared. He referred to testimonies of the witnesses wherein it has come that the transcripts were prepared from a CD but no witness has stated that when and where that CD was prepared.
83. Learned Senior PP for CBI has relied upon following CBI Case No. 70/2019 CBI vs. Sarup Singh Page 46 of 72 judgments:
a). "State of U.P. vs Zakaullah", dated 12/12/1997 of Hon'ble Supreme Court.
b). "State of West Bengal Vs Kailash Chander Pandey"
dated 13/10/2004 of Hon'ble Supreme Court of India.
c). "Sultan Ahmed Vs State of Bihar", 1974 SCC (Crime)
414.
d). "Som Parkash Vs State of Delhi", 1974 SCC (Crime) 215.
e). "Gyan Singh Vs State of Punjab", 1974 SCC (Crime) 406.
f). "State of UP Vs Doctor G.K. Ghosh", 1984 SCC (Crime)
46.
g). "State of Gujarat VS Raghunath Vaman Rao Baxi", 1985 SCC (Crime) 304.
h). "Madhukar Bhaskar Rao Vs State of Maharashtra", 2001 SCC (Crime) 34.
i). "M.O. Samshudhin Vs State of Kerala", 1995 SCC (Crime) 509.
j). "M.W. Mohiuddin Vs State of Maharashtra", 1995 SCC (Crime) 546.
k). "Government of Andhra Pradesh and other Vs P Venkureddy", 2002 SCC (Crime) 1826.
l). "Abdul Kaffar Vs State of Kerala", 2004 SCC (Crime) 981.
m). "State of Andhra Pradesh Vs Uma Maheshwara Rao & Anr.", 2004 SCC (Crime) 1276.
n). "Rajendra Shinde and Anr Vs The State of Maharashtra", decided on 13.03.2018 of Hon'ble Bombay High Court.
o). Criminal Appeal Nos.895-896 of 2018, titled as "State of Gujarat Vs Navin Bhai Chanderkant", date of decision CBI Case No. 70/2019 CBI vs. Sarup Singh Page 47 of 72 17.07.2018 of Hon'ble Supreme Court of India.
84. Learned counsel for accused has relied upon following judgments:-
a). "Krishan Chander Vs State of Delhi", Criminal Appeal No. 14 of 2016, date of decision 06/01/2016 of Hon'ble Supreme Court of India.
b). Criminal Appeal no. 31 of 2009, titled as "P. SatyanarayanaMurthy Vs The Dist. Inspector of Police & Anr.", date of decision: 14/09/2015 of Hon'ble Supreme Court of India.
c). Criminal Appeal no. 1350/2009, titled as "State of Maharashtra Vs Dnyaneshwar Laxman Rao Wankhede", date of decision 29.07.2009 of Hon'ble Supreme Court of India.
d). Criminal Appeal no. 377 of 2009, titled as "C.M. Girish Babu Vs CBI, Cochin" of Hon'ble High Court of Kerala.
e). "M.K.Harshan Vs State of Kerala", date of decision 08.03.1995, AIR 1995 SC 2178 of Hon'ble Supreme Court of India.
f). Criminal Appeal No.1276 of 2010", titled as "Dashrath Singh Chauhan Vs Central Bureau of Investigation", date of decision 09.10.2018 of Hon'ble Supreme Court of India.
g). Criminal Appeal No.491-492 of 2010, titled as "Munshi Prashad and Ors. Vs State of Bihar", date of decision 10.01.2001 of Hon'ble Supreme Court of India.
h). Criminal Appeal No. 142 of 2015, "Tomaso Bruno & Anr Vs State of U.P.", date of decision 20/01/2015 of Hon'ble Supreme Court of India.
i). Criminal Appeal no. 879 of 2004, tiled as "Musauddin Ahmed Vs State of Assam", date of decision 06/07/2009 of CBI Case No. 70/2019 CBI vs. Sarup Singh Page 48 of 72 Hon'ble Supreme Court of India.
j). "Bhagirath Vs State of Madhya Pradesh", date of decision 08.09.1975, AIR 1976 SC 975 of Hon'ble Supreme Court of India.
k). "Sharad Birdhi Chand Sarda VS State of Maharashtra", 1984 AIR 1622, date of decision 17/07/1984 of Hon'ble Supreme Court of India.
l). "Criminal Appeal no. 2496 of 2009, titled as "Nanhar & Ors. Vs State of Haryana", date of decision 11/06/2010 of Hon'ble Supreme Court of India.
m). "Anvar P.V. Vs P.K. Basheer & others", Civil Appeal no.
4226 of 2012, date of decision: 18/09/2014 of Hon'ble Supreme Court of India.
n). "Nilesh Dinkar Paradhkar Vs State of Maharashtra", (2011) 4 SCC 143.
o). "Ram Singh & Ors. Vs Col. Ram Singh", 1986 AIR, 3 1985 SCR Supl. (2) 399.
p). Criminal Appeal no. 66/2013, titled as "Anil Kumar Tito @ Anil Kumar Sharma & Titto", date of decision: 29/05/2015 of Hon'ble Delhi High Court.
q). Criminal Appeal no. 527 of 2014, titled as "Jagdeo Singh @ Jagga Vs The State", date of decision 11/02/2015 of Hon'ble Delhi High Court.
r). Criminal Appeal no. 711/2014, titled as "Kundan Singh Vs The state", date of decision 24/11/2015 of Hon'ble Delhi High Court.
s). "R.M. Malkani Vs State of Maharashtra", AIR 1973 SC
157.
t). Civil Appeal Nos. 2795-2796 of 2011, titled as "K.K. Velusamy Vs N. Palanisamy" of Hon'ble Supreme Court of India.
u). "Sat Paul Vs Delhi Administration", AIR 1976 SC 294. CBI Case No. 70/2019 CBI vs. Sarup Singh Page 49 of 72
v). Criminal M.C. No. 2019/2011 titled as "Ramesh Thakur Vs State (NCT of Delhi) & Anr", date of decision 24/05/2013 of Hon'ble Delhi High Court.
w). Criminal Appeal no. 507/1994, titled as "The State of M.P. Vs Pappo @ Saleem & Ors", date of decision 18/05/2010 of Hon'ble Madhya Pradesh High Court.
x). Criminal Appeal no. 206/2002, titled as "Prem Singh Yadav Vs Central Bureau of Investigation", date of decision: 25/03/2011 of Hon'ble Delhi High Court. y). Criminal Appeal (MD) No. 101 of 2009, titled as "A. Kanagarajan Vs State Through Inspector of Police ( V&AC) Sivagangai", date of decision:-01/12/2014 of Hon'ble Madras High Court.
z). Criminal Leave Petition no. 8/2013, titled as "State Vs Sunil Kumar @ Sagar @ Rahul & Ors.", date of decision:-
27/01/2015 of Hon'ble Delhi High Court.
aa). "Vijay Singh Vs State of M.P.", 2005 Cri LJ 299. ab). Criminal Appeal no. 870 of 2012, titled as "Mukut Bihari & Anr. Vs State of Rajasthan", date of decision:
25/05/2012 of Hon'ble Supreme Court of India.
ac). "Vineet Narain & Others Vs Union of India & Another", date of decision:-18/12/1997 of Hon'ble Supreme Court of India.
ad). "Suraj Mal Vs State (Delhi Administration)", AIR 1979 SC 1408.
ae). "Devender @ Kallu Vs. State", 2011 (2) JCC 1453.
af). "Rajesh Kumar Vs State", 2011 (2) JCC 1453.
ag). "Ukha Kolhe Vs State of Maharashtra", AIR 1963 SC 1531.
ah). Criminal Appeal No. 518 of 2006, titled as "Krishna Janardhan Bhat Vs Dattatraya G. Hegde", date of decision 11/01/2008 of Hon'ble Supreme Court of India.CBI Case No. 70/2019 CBI vs. Sarup Singh Page 50 of 72
ai). "Harchand Singh & Anr. Vs State of Haryana", 1974 AIR
344. aj). "Suraj Mal Vs State (Delhi Administration)", decided on 13.02.1979, AIR 1979 SC 1408 of Hon'ble Supreme Court of India.
ak). Criminal Appeal No. 1838 of 2013, titled as "CBI Vs Ashok Kumar Aggarwal", date of decision 31.10.2013 of Hon'ble Supreme Court of India.
al). Criminal Appeal no. 766 of 2001, titled as "State of Karnataka Vs Ameer Jan", date of decision 18/09/2007 of Hon'ble Supreme Court of India.
am). Criminal Appeal no. 456 of 2014, titled as "P.L. Tatwal Vs State of Madhya Pradesh", date of decision:- 19/02/2014 of Hon'ble Supreme Court of India.
an). "State of Tamil Nadu Vs M.M. Rajendran", (1998) 9 SCC
268. ao). "Mansukhlal Vithaldas Chauhan Vs State of Gujarat", date of decision: 03/09/1997 of Hon'ble Supreme Court of India.
ap). Criminal Appeal No.31 of 2009, titled as "P. Satyanarayana Murthy Vs The Dist. Inspector of Police and Anr.", of Hon'ble Supreme Court of India.
aq). Criminal Appeal No. 206/2002, titled as "Prem Singh Yadav Vs Central Bureau of Investigation" of Hon'ble High Court of Delhi.
FINDINGS:
85. The provisions of section 7 and 13(1)(d) of the PC Act may be noted for ready reference. These provisions, as on 28.10.2016 i.e. date of offence, read as under:
Section 7. Public servant taking gratification other than legal CBI Case No. 70/2019 CBI vs. Sarup Singh Page 51 of 72 remuneration in respect of an official act. -- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing for forbearing to show, in exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2 or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years] and shall also be liable to fine.
Explanations - X X X X X Section 13. Criminal misconduct by a public servant.-- (1) A public servant is said to commit the offence of criminal misconduct,--
(a) x x x ; or
(b) x x x ; or
(c) x x x ; or
(d) if he,--
CBI Case No. 70/2019 CBI vs. Sarup Singh Page 52 of 72
(i) by corrupt or illegal means, obtains for himself or
for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) xxx.
Explanation: X X X X X
86. Thus ingredients of offences under section 7 and 13 (1) (d) of the PC Act are as follows:
Of offence u/s 7 of PC Act:-
a). That the person accepting the gratification should be a public servant.
b). That he should accept the gratification for himself and the gratification should be as a motive and reward for doing or forbearing to do any official act, for showing or forbearing to show, in the exercise of his official function, favour or disfavor to any person.CBI Case No. 70/2019 CBI vs. Sarup Singh Page 53 of 72
Of offence u/s 13 (1) (d) of the PC Act:-
a). That he should have been a public servant; b). That he should have used corrupt or illegal means or
otherwise abused his official position as such public servant and
c). That he should have obtained a valuable thing or pecuniary advantage for himself or for any other person.
87. It is settled law now that for the offence under section 7 of the PC Act, demand of illegal gratification is sine qua non. Mere recovery of the money will not be sufficient to the prove the said offence. Reference may be made to B. Jayaraj v. State of AP, (2014) 13 SCC 55. Further, for the offence under section 13(1)(d) of the PC Act, the twin requirement is of demand of illegal gratification and its recovery.
88. Prosecution heavily relies upon evidences of complainant/PW-5, two independent witnesses PW-9 and PW-11, verifying officer PW-13 and TLO PW-19 to prove the abovestated ingredients. It further relies upon the recordings in DVR Ex. PW8/B-3 and Memory Card Ex. PW8/C-5 and their transcripts Ex.PW8/E (Colly.) and Ex.PW8/F (Colly.) respectively; the CFSL report Ex. PW8/H regarding voice recordings; the CFSL report Ex. PW12/B regarding CBI Case No. 70/2019 CBI vs. Sarup Singh Page 54 of 72 handwashes and baniyan wash; and testimonies of few other witnesses as corroborative pieces of evidence.
89. Learned Senior PP submitted that through testimonies of the abovestated witnesses and other material, prosecution has proved demand, acceptance and recovery of the bribe amount. He particularly referred to recovery memo Ex.PW9/A.
90. Learned Counsel for accused, however, argued that prosecution has failed to prove demand. He argued that the recordings cannot be taken as true as the requirements of law to make these recordings become admissible have not been fulfilled. He referred to the case of Ram Singh (supra). Regarding their transcripts relied upon by the prosecution, learned counsel argued that the same cannot be considered as they have not been prepared properly. He highlighted that according to prosecution transcript was prepared from investigation copy CD. But there is no evidence that any investigation copy of CD was prepared at all. He pointed out that many witnesses have stated differently regarding preparation of transcripts. He mainly focused on statement of PW-9 in cross-examination in which he volunteered that the memory card was inserted in the computer to hear the conversation. Learned counsel highlighted that this statement was contrary to stand of the prosecution that conversation was heard from CD while preparing transcripts. He further submitted that various CBI Case No. 70/2019 CBI vs. Sarup Singh Page 55 of 72 words which complainant (PW5) himself says that those words were uttered by accused are not found in the transcript and, therefore, the said transcript is useless. He also submitted that it is not clear from which source the transcript was prepared. He also argued that no file numbers of the audio files were mentioned in the report. He submitted that in the absence of file numbers of the audio files, the recording cannot be relied upon. He also complained that hash value was also not mentioned regarding the recordings. He also doubted the process adopted by the CBI officials to verify blankness of the memory card used in the DVR. He highlighted that according to DW6, the blankness of the memory card could be checked by seeing file numbers on the display screen which appears after switching on the DVR. According to DW6, if there is no recording, no file number or name would appear. Whereas CBI officials checked the blankness by playing the DVR. Thus, learned Counsel submitted that there is doubt whether the memory cards were blank or not.
91. In the case of Ram Singh (supra), Hon'ble Supreme Court laid down certain conditions before accepting tape recorded conversations as evidence. The said conditions are as follows:-
a). The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition CBI Case No. 70/2019 CBI vs. Sarup Singh Page 56 of 72 for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker;
b). The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence -- direct or circumstantial;
c). Every possibility of tampering with or erasure of a part of a tape- recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible;
d). The statement must be relevant according to the rules of Evidence Act;
e). The recorded cassette must be carefully sealed and kept in safe or judicial custody; and
f). The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances;
92. I find no force in the submissions of learned defence counsel. Merely by asserting that blankness was checked by playing the DVR, it does not mean that DVR or the memory card was not blank. By using the word 'playing', the witnesses meant to have CBI Case No. 70/2019 CBI vs. Sarup Singh Page 57 of 72 switched on the said DVR and seeing the contents on the display screen. We cannot be this much technical in interpreting the deposition of witnesses. The report of the FSL expert itself shows that there was no tampering in the recordings. Moreover, the accused has also failed to show existence of any other audio file in the DVR or in the memory card.
93. There are two transcripts i.e. Q1 Ex.PW8/E (Colly.)] and Q2 [Ex.PW8/F (Colly.)]. Transcript Q1 pertains to recording made on 27.10.2016 i.e. during verification proceedings whereas transcript Q2 pertains to recording made on 28.10.2016 i.e. during trap. One of the grievance of learned Counsel was that the file numbers have not been mentioned in the transcripts. However, on the contrary, perusal of both the transcripts shows that file numbers of the audio files are duly mentioned. The report of the CFSL expert Ex.PW8/H also contains details of the files found in the DVR and memory card and the file numbers correspond to those mentioned in the transcripts. One or two words which are not found in the transcript have been mentioned by learned Counsel as "poore hain". These words are not found in the transcript but are found mentioned in the report Ex.PW8/H. Merely, omission of these words in the transcript Ex.PW8/F will not make the whole transcript a useless document. The accused himself has not filed any other transcript showing that the recording was different from CBI Case No. 70/2019 CBI vs. Sarup Singh Page 58 of 72 what is described in the transcripts. It is not case of the accused that the conversation is totally out of context or totally different from that mentioned in the transcripts. The assertion of PW-9 that transcripts were prepared by hearing conversation from memory card is factually incorrect. The transcription-cum-voice identification memo clearly mentions that conversation was heard from CD. PW-9 is also signatory to this document. Thus PW-9's statement on this aspect needs to be ignored. Therefore, these contentions of learned Counsel are also rejected. The transcripts can be read. There is clear evidence of demand of illegal gratification on the part of the accused in these transcripts.
94. The complainant has duly identified the voice of the accused in the recordings as reflected in the transcription-cum-voice identification memo Ex. PW9/C and as deposed by him. The transcripts were prepared from investigation copy of CD of the recordings. The CD was prepared by CFSL as is clear from Ex. PW18/PX-1. The original recordings were sent to CFSL to preparation of copies. Thus all the conditions laid down in Ram Singh's case (supra) have been fulfilled.
95. Learned Counsel for accused next focused on the report of the CFSL expert which Ex.PW8/H. According to learned Counsel, the opinion of the expert is that the voice in the questioned recording and CBI Case No. 70/2019 CBI vs. Sarup Singh Page 59 of 72 sample recording is probably of the same person. learned Counsel thus submitted that the expert/PW8 is himself not sure.
96. PW8 had explained that the language used by them is routinely used in expressing opinion regarding voice samples. I also do not find anything wrong in use of word "probable voice". It is an opinion only and, therefore, use of the said word is not fatal to the prosecution case.
97. Another limb of argument of learned Counsel in attacking the CFSL report Ex.PW8/H was that the CFSL CBI was not covered U/s 79-A of the Information Technology Act, 2000 ("IT Act") because no notification had been made authorizing CFSL CBI to conduct such examinations.
98. Just because there was no notification, it cannot be said that report of CFSL CBI (Ex.PW8/H) would have to be discarded. The notification U/s 79-A of the IT Act merely provides for acceptance of the report without further proof. The notification merely acknowledges expertise of the particular lab to give the said opinion. It does not say that the labs in respect of which there is no notification U/s 79-A of the IT Act cannot conduct those tests. The only difference will be that the experts conducting such tests at the lab not so notified would have to prove their expertise first and only then the report given by them would CBI Case No. 70/2019 CBI vs. Sarup Singh Page 60 of 72 be considered. In the present case PW8 has shown his expertise in the concerned field Therefore, report Ex.PW8/H cannot be discarded merely on this ground.
99. He also vehemently submitted that neither PW5 nor any other witness has identified voice of accused in the recordings. He referred to the case of Ram Singh (supra) wherein certain conditions were laid down by Hon'ble Supreme Court for accepting tape recording conversation as proof. Learned Counsel for the accused argued that PW5 has not identified the incriminating lines in the recordings to be in the voice of the accused. He contended that neither PW5 nor any other witness says that the incriminating words/ lines were uttered by the accused and, therefore, the recordings are of no use.
100. I do not find any substance in these submissions. It cannot be said that PW5/ complainant has not identified voice of accused. He has very much identified the same. Moreover report of the CFSL expert also confirms voice of accused in the recording, as the same has matched with the sample voice.
101. Learned Counsel also had raised grievance that voice sample of accused was not voluntarily taken. This contention is also to be rejected. There is nothing on record to suggest that voice sample was not voluntarily given.
CBI Case No. 70/2019 CBI vs. Sarup Singh Page 61 of 72
102. Learned Counsel for the accused submitted that recovery of money is doubtful. He referred to testimony of PW19 and PW5. He highlighted that there are many contradictions in evidence of both these witnesses regarding the place from where the money was recovered. He pointed out that according to PW19, money was kept by accused " in the back side of his pant tucked inside the belt near the waist". He then referred to testimony of PW5 wherein he stated that accused had kept the money "at back side of Khaki Shirt". He also referred to testimony of PW9 wherein he stated that "money was found inside the backside of the shirt of the accused". Learned Counsel thus vehemently submitted that witnesses are not sure of the exact portion of the cloths from where the money was recovered. He argued that different versions about recovery of money must lead to conclusion that recovery has not been proved satisfactorily. He referred to judgment in the case of Bhagirath (supra). Learned Counsel asserted that prosecution must prove the same story which it alleges. He submitted that the court on its own also cannot make out a new case for the prosecution and convict the accused.
103. In my view, there is no merit in these contentions. If viewed deeply, there is no contradiction in the evidence of these witnesses. The money was kept by the accused at his back between his shirt and vest and it was tucked inside the belt of the pant. It is unimaginable that CBI Case No. 70/2019 CBI vs. Sarup Singh Page 62 of 72 the accused who was a police official would keep the bundle of currency notes outside the shirt because in that case the currency notes would be visible to all. A police official indulging in corrupt practices would not keep the money in such a manner. Therefore, money was kept by accused inside his shirt and between his vest. Even if, it is held that there is some contradiction, then the same must be held to be a very minor contradiction which does not affect the prosecution case at all.
104. The next contention of learned counsel for the accused was that no money could be recovered from the accused at Laxmi Narain Mandir. He submitted that according to prosecution case, the money was sealed in the envelope at Laxmi Narayan Mandir. Whereas according to defence witnesses, as well as from cross-examination of prosecution witnesses, learned Counsel submits that accused has shown that the currency notes had remained with the trap team even at Shakurpur. He referred to testimony of DW1 wherein he stated that the had seen CBI people insisting upon accused Sarup Singh to accept money which was in a bundle of currency notes of Rs.1000/- denomination.
105. Learned counsel for the accused further referred to evidence of DW5 and submitted that from his evidence also, there arises grave amount of doubt about the recovery of money. DW5 had CBI Case No. 70/2019 CBI vs. Sarup Singh Page 63 of 72 stated that he had seen six quarter bottles half filled with pink colour liquid and all those bottles were lying open. According to DW5, the CBI official had taken match box from him and put the caps on those bottles. DW5 further deposed to have seen CBI official picking up a vest of white colour from the clothes of accused in the barrack. From these pieces of evidence, learned counsel for accused argued that accused had not received money and had not touched them. The hand washes were manipulated and planted upon accused. Referring to P. Satyanarayan Murti's case (supra), learned Counsel submitted that suspicion howsoever grave cannot take place of proof. He also referred to Ram Singh's case (supra) and submitted that testimony of defence witnesses also deserves equal treatment and respect. He submitted that from the evidence of these defence witnesses, recovery had become doubtful. Regarding testimony of PW5, learned Counsel submitted that he was complainant and an interested witness and his evidence alone is not sufficient to prove the guilt.
106. In my view, merely from occular version of these defence witnesses, it cannot be said that accused was able to rebut the evidence led by prosecution. Witnesses of the prosecution proved positive facts. There are documents supporting their versions. Whereas the witnesses of the defence merely deposed to deny those facts. Their depositions do not inspire confidence in as much as they CBI Case No. 70/2019 CBI vs. Sarup Singh Page 64 of 72 had not complained to any authority till the date they gave evidence in the court that there was any wrong doing on the part of CBI officials. If they had witnessed some wrong being done, they could have reported the same to the higher authorities but they did not do so. Their testimonies merely appear to be an attempt to scandalize the evidence of the prosecution witnesses. From their evidence, accused is not able to prove that the currency notes were not in sealed condition or that the bottles of hand washes were not in sealed condition.
107. Learned Counsel submitted that no one says that accused was wearing any baniyan and, therefore, recovery of baniyan is doubtful.
108. I am not impressed with this argument. PW-19 specifically says that uniform of accused was got removed in the police station keeping in view his dignity and the baniyan was taken out. This clearly means that accused was wearing baniyan which was taken out.
109. DW5 claims to have seen the bottles lying opened. However, against his testimony, there is testimony of various witnesses including independent witnesses i.e. PW9 and PW11 from which it can be seen that the hand wash of accused was taken and sealed immediately at the spot when complainant had given signal. The assertion of this DW5 that bottles were lying opened is merely an CBI Case No. 70/2019 CBI vs. Sarup Singh Page 65 of 72 attempt to nullify evidence of aforesaid PWs. Only wash of baniyan was taken in the PS.
110. Learned Defence counsel also stressed upon the fact that different timings have been stated regarding arrival of Firoz at the CBI office. He referred to recovery memo Ex.PW9/A wherein it is mentioned that when complainant and shadow witness Mohd. Wasim were directed to proceed towards spot, complainant offered to take his friend Firoz with him as a cover stating that Firoz had come casually. Then he referred to testimony of PW4 Firoz himself wherein Firoz stated that he had made phone call to complainant regarding his payment on 28.10.2016 but complainant asked him to come to CGO complex. Thereafter, he referred to evidence of PW19 TLO, in which he stated that car of complainant was parked outside CBI office and complainant introduced his friend Firoz to the CBI team and requested him to accompany him. Learned Counsel thus submitted that participation of Firoz is also doubtful.
111. In my considered view, these different versions, if they can be called so, do not create any doubt about Firoz joining the proceedings. Moreover, there are testimonies of other witnesses which prove the guilt of the accused.
112. Learned Counsel next attacked the certificates given by the CBI Case No. 70/2019 CBI vs. Sarup Singh Page 66 of 72 nodal officers regarding CDRs submitting that those certificates were not issued as per the conditions laid down in the case of Anvar P.V. (supra).
113. I do not find any defect in the certificates issued by the Nodal Officers. They had limited access to the data and it was secured by a login id and password. Thus the certificates are good enough to make CDR's reliable.
114. He also complained that CCTV cameras must have been available at Seven Heaven Banquet and at Laxmi Narayan Mandir but no effort was made to collect those recordings. He submitted that those recordings could show innocence of accused.
115. I do not find any merit in this contention. If CCTV footage were so essential, accused could also make effort to produce the same.
116. Learned Counsel for the accused raised much hue and cry about the proceedings conducted at Shakurpur shop. Firstly, he submitted that the entire happenings at Shakurpur shop were omitted from the charge-sheet and which came on record only at the time of evidence. He thus submitted by concealing the said episode in the charge-sheet, it must be assumed that there was something fishy about the same. Secondly, he submitted that the proceedings at CBI Case No. 70/2019 CBI vs. Sarup Singh Page 67 of 72 Shakurpur office were not audio recorded or video recorded. He referred to the CBI Manual in this regard. He alleged that the proceedings were not recorded because CBI was intending to falsely implicate the accused as the trap was failing because the SHO had not received money. He referred to evidence of DW1 in this regard who had purportedly seen CBI officials pressurizing the accused.
117. Perusal of CBI Manual shows that it is not mandatory in all circumstances to audio and video record the proceedings at all the times. It depends on the facts and circumstances at the relevant time. Only if it is feasible, the proceedings can be audio and video recorded. It cannot be said that by not mentioning the episode of Shakurpur in the charge-sheet, the CBI wanted to conceal anything. The visit to Shakurpur is very well mentioned in the recovery memo Ex.PW9/A. The said document was filed alongwith the charge-sheet. If CBI wanted to conceal happenings at Shakurpur, the same would not have been mentioned in the recovery memo. The evidence of DW1 which is an attempt to scandalize the proceedings is to be rejected.
118. Learned Counsel for accused has argued that sanction granted by PW2 is not proper. He referred to evidence of PW-18 (IO) wherein it has come that draft sanction order was also sent to the sanctioning authority. Learned Counsel thus submitted that there was non application of mind by sanctioning authority as it merely acted CBI Case No. 70/2019 CBI vs. Sarup Singh Page 68 of 72 upon the draft sanction order.
119. There is no weight in these submissions. Merely by sending draft sanction order, it cannot be said that there was non-application of mind. Perusal of evidence of PW2 shows that he had duly considered all the documents before granting sanction. The sanction order itself shows that there was due application of mind. Reference may be made to C.S. Krishnamurthy Vs State of Karnataka, AIR 2005 SC 2790 wherein also a draft sanction order was sent to the sanctioning authority but still the sanction order was upheld.
120. Another argument advanced by the defence is that the CBI wanted to save the SHO and, therefore, did not produce the recording made in the mobile phone of the complainant.
121. Again, there is no force in this contention. Nothing incriminating was found against the SHO and thus the said recording was not produced. Even otherwise, the fact that the SHO has not been chargesheeted does not reduce the guilt of the accused. The accused has to meet the case against him.
122. Learned Counsel referred to Ex. DW3/A which is an Office Order dt. 15.12.2005 issued by Central Vigilance Commission ("CVC"). In this order, the CVC advised that public servants who were requisitioned as witnesses by CBI should not turn hostile and that if CBI Case No. 70/2019 CBI vs. Sarup Singh Page 69 of 72 they do, their conduct would be taken as misconduct. Learned Counsel thus submitted that due to this Office Order, the independent witnesses who deposed in the present case cannot be called truly independent. He wanted to convey that those witnesses deposed under some compulsion contained in the said order.
123. Merely on the basis of aforsaid office order, it cannot be concluded that the independent witnesses were not truly independent. The said order does not in any manner impedes upon the independence of the witnesses. It only contains a reminder to them that if they depose against the true facts, then action would be taken against them. It does not curtail their independence in any manner.
124. Learned Defence Counsel also pointed out that hash value of the recordings has not been mentioned anywhere and thus tampering cannot be ruled out.
125. Non-mentioning of hash value is not fatal. The DVR and the memory card were sealed appropriately and seals were found intact at the CFSL Lab. Moreover, hash value is desirable in cases where data on computer hard disks is to be analyzed.
126. Learned Counsel for the accused also complained about there being no link evidence led by prosecution showing movement of the exhibits from malkhana to the lab and vice versa to rule out CBI Case No. 70/2019 CBI vs. Sarup Singh Page 70 of 72 tampering.
127. In my considered view, there was no necessity of such link evidence in the present case. The forwarding letter through which exhibits were sent has been duly exhibited and proved.
128. During the verification proceedings Ex.PW5/B, demand on the part of the accused was verified. There is no doubt that demand was made by the accused from complainant. Accused had given next day's time to complainant to pay the money. On the next date i.e. 28.10.2016 the trap was laid.
129. Making of phone calls from mobile phone of complainant to mobile phone of accused stand verified from the CDR's. This also lends credence to the case of the prosecution.
130. From testimonies of complainant, two independent witnesses as well as CBI officials, it has been established beyond any doubt that accused had come to meet complainant on the day of trap. It has also been established that accused sat inside the car of complainant. Prosecution has proved that complainant had paid the money to the accused inside the car. It is to be noted that only complainant, the accused and Ct. Roshan were inside the car at that relevant time. The other occupants had come out of the car. The complainant/PW-5 has categorically deposed about demand of money CBI Case No. 70/2019 CBI vs. Sarup Singh Page 71 of 72 by accused and his giving money to the accused inside the car. The money was recovered also from the accused. His handwashes and baniyan wash corroborate the receipt of money.
131. The transcript of the conversation which took place inside the car [Ex.PW8/F (Colly.)] shows that money was infact paid by complainant to the accused. The accused could be heard saying, "Jai Laxmi Mata Ki". The sound of counting money could also be heard. This piece of evidence corroborates evidence of PW5/Complainant that he had paid money to the accused.
132. In conclusion, it is held that the prosecution has proved the charges. The accused HC Sarup Singh is held guilty and is convicted for the offences punishable u/s 7 and 13(2) r/w 13(1)(d) of the PC Act.
133. Let he be heard on sentence.
Digitally signed
Announced in the Open Court SANJAY by SANJAY BANSAL on this 23rd day of August, 2019 BANSAL Date: 2019.08.23 15:30:13 +0530 (Sanjay Bansal) Special Judge (PC Act), CBI-16: Rouse Avenue Court Complex: Delhi. CBI Case No. 70/2019 CBI vs. Sarup Singh Page 72 of 72