Delhi District Court
Cbi vs Nirmal Singh on 8 September, 2017
IN THE COURT OF MANOJ JAIN
SPECIAL JUDGE (PC ACT) (CBI)-04: CENTRAL DISTRICT
TIS HAZARI COURTS: DELHI
CNR No. DLCT01-004642-2015
New CC No. 05/2016
RC No. 05(A)/2015/CBI/ACB/ND
U/s 7, 13 (2) r/w 13 (1) (d) PC Act 1988
CBI Versus Nirmal Singh
Son of Sh. Bihara Singh,
Resident of A-14, Bindhya Shree
Apartment, Near Shalimar,
Main Road, Burari, Delhi
(Sub Inspector, Operation Cell,
Maurice Nagar, North District,
Police Department, Delhi)
Date of Institution : 30.06.2015
Date of conclusion of Final Arguments : 17.08.2017
Date of Judgment : 08.09.2017
Memo of Appearance
Sh. A.K. Rao, learned Public Prosecutor for CBI
Sh. Manoranjan, learned defence counsel for accused
JUDGMENT
PROSECUTION STORY 1.0 Vipin Kumar (PW7) was Field Worker in a security agency. He was getting threatening calls from accused Nirmal Singh, posted as Sub Inspector in Operation cell. Accused was also asking for bribe of Rs. 1 lac from Vipin Kumar to clear his name in connection with one complaint against him. Vipin was also called by accused in Maurice Nagar Office of Operation Cell on 10.02.2015 and was told that in case bribe was given, CC No. 05/2016 CNR No. DLCT01-004642-2015 page 1 of 41 he (accused) would close such complaint. Since Vipin Kumar did not want to grease his palms, he contacted CBI with a written complaint (Ex. PW7/1) on 11.02.2015.
1.1 Allegations made in such complaint were verified in the presence of independent witness. Complainant Vipin Kumar was having mobile number 9899793566 and during verification proceedings, he was asked to make call to mobile number 9278984591 of suspect officer i.e. accused. Such conversation also indicated demand of bribe on the part of accused. Accused was found unwilling to enter into any conversation regarding bribe over the phone but did ask Vipin as to why he was not visiting him. Vipin Kumar informed him during such telephonic conversation that he was able to arrange Rs. 70,000/- and also told that he would visit him in half an hour. Contents of written complaint and corresponding verification call divulged commission of offence under Section 7 of Prevention of Corruption Act 1988 on the part of accused Nirmal Singh and accordingly FIR (Ex. PW7/2) was registered immediately.
1.2 Trap team was constituted and two independent witnesses, namely, PW12 Dr. Ashish Tiwari and PW14 Prabal Sadhu (officials of SAIL) were also associated in the investigation. Complainant arranged and produced an amount of Rs. 70,000/- which were treated with phenolphthalein powder. After such treatment, said amount was handed over to complainant with direction not to touch the same and to hand over the same to accused on his specific demand only.
1.3 A DVR was arranged and a new blank memory card was put into such DVR. It was given to complainant with direction to keep the same with him in discreet manner. He was instructed to put it 'on recording' mode once he reached near the accused.
CC No. 05/2016 CNR No. DLCT01-004642-2015 page 2 of 41 1.4 Trap team proceeded for the place of occurrence i.e. Office of Operation Cell,
Delhi Police, Maurice Nagar and reached there at about 3.20 PM in two official vehicles. Before leaving the CBI office, three calls were received by complainant on his mobile from the said mobile of accused which reflected that accused was inquiring about the location of the complainant and the tentative time he was going to take to reach there. Such conversation was also duly recorded.
1.5 Ashish Tiwari was requested to become shadow witness.
1.6 Complainant along with shadow witness proceeded towards Operation Cell Office and other team members followed them in a clandestine manner. However, since Operation Cell Office was heavily guarded with the officials moving in the campus, shadow witness could not go inside the premises and remained near the main gate. Other team members also took position near main gate.
1.7 At about 3.55 PM, accused and complainant were found leaving Operation Cell Office in white Maruti Swift car bearing no. DL-8CR-8989. It was being driven by accused with complainant sitting on the left front seat. Trap team followed them in the official vehicles. CBI officials could sense from the manner in which accused was driving his Swift car as if he was wary and conscious and wanted to assure that he was not being followed.
1.8 During such journey, when they both were travelling in said Swift car, accused Nirmal Singh demanded bribe and complainant handed him over the bribe amount of Rs. 70,000/- , Thereafter, Vipin made a call to TLO informing him that money had been accepted. Trap team reached towards Swift car and noticed accused trying to push out the complainant and wanting to flee away. Car was intercepted. Complainant informed the trap team that the bribe amount was in the dashboard of the car which accused had CC No. 05/2016 CNR No. DLCT01-004642-2015 page 3 of 41 kept himself after accepting the same from him.
1.9 Such amount was recovered from the dashboard.
1.10 Hand-washes also confirmed that the bribe money had been accepted by the accused.
1.11 Further investigation was carried out and on being asked, accused admitted that one source of operation cell, i.e. Poonam Aggarwal @ Anchal had lodged a complaint with them in which she had alleged that her one diamond ring had been taken away by Vipin Kumar. He also admitted that since said lady was rendering assistance to police department, he helped her in recovering her dues from Vipin Kumar.
1.12 Voice sample of accused was taken and report of voice analysis confirmed demand and acceptance. Call details record (CDR) of Mobile numbers of accused as well as of complainant were also collected.
1.13 After obtaining sanction for prosecution of accused Nirmal Singh, matter was sent to court.
COGNIZANCE AND CHARGES 2.0 Charge sheet was submitted on 30.6.2015 and cognizance for offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of P.C. Act was taken.
2.1 Arguments on charge were heard by my Ld. Predecessor and on 28.8.2015, accused was charged for offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of P. C. Act. He pleaded not guilty and claimed trial.
CC No. 05/2016 CNR No. DLCT01-004642-2015 page 4 of 41
PROSECUTION EVIDENCE
3.0 Prosecution was directed to adduce evidence.
3.1 In order to prove its case, 16 witnesses were examined by CBI. These are as
follows:
Sr. No. Name of the witness Purpose of examination
PW-1 Vijay Verma, Sr. Scientific Officer Handwriting Expert who confirmed that the
(Assistant Chemical Examiner) questioned document Ex. PW 1/2 (Q-1) was
in the handwriting of Ms. Poonam Aggarwal
@ Anchal.
PW-2 V. B. Ramteke, Sr. Scientific Chemical expert who examined hand-
Officer (Chemistry) washes.
PW-3 Rajeev Ranjan, Nodal Officer Tata Call details and CAF of Mobile No.
Telecom. 9278984591.
PW-4 Pradeep Singh, Nodal Officer Call details and CAF of Mobile No.
Vodafone Company. 9899793566.
PW-5 Manpreet Singh (son of accused). Taken car on superdari and admitted Mobile
No. 9278984591 to be in his name which
used to be used by his family members
including his father.
PW-6 SI Ram Avtar Sharma Place of posting of accused.
PW-7 Vipin Kumar Complainant.
PW-8 Devender Dubey Subscriber of mobile No. 9899793566 which
was used by complainant Vipin Kumar.
PW-9 Poonam Agarwal The Lady who had filed complaint against
Vipin Kumar in connection with her ring.
PW-10 Madhur Verma, DCP Sanctioning authority.
PW-11 Inspt. Raman Kumar Shukla Witness to verification proceedings and trap
proceedings.
PW-12 Dr. Ashish Tiwari Independent witness.
PW-13 Dr. Rajender Singh, Director CFSL Voice expert.
PW-14 Prabal Sadhu Independent witness.
CC No. 05/2016 CNR No. DLCT01-004642-2015 page 5 of 41
PW-15 K.S. Pathania Trap Laying Officer (TLO)
PW-16 Joseph Krelo Dy. SP. I.O. who entered into scene after the trap
and done further investigation
VERSION OF ACCUSED
4.0 Accused, in his statement under Section 313 Cr.P.C., pleaded innocence and
claimed that he had been falsely implicated.
4.1 He denied there being any previous conversation between him and
complainant Vipin Kumar. According to him, complainant Vipin Kumar got alerted about likely action against him on the basis of complaint of Poonam Aggarwal @ Anchal and in order to circumvent the same, he went to CBI and lodged a false and malafide complaint. He pleaded ignorance about pre-trap proceedings.
4.2 He did admit that complainant had come to meet him on 11.2.2015 but supplemented that complainant had asked him not to proceed with the complaint against him. He denied that there was any demand from his side in connection with destroying the said complaint of Ms. Anchal. According to him, complainant had requested him to drop on the way as he had not come in his own vehicle and, therefore, he (accused) gave him lift and dropped him near Khalsa College.
4.3 He denied any recovery of any amount from the dashboard of the car or from the car.
4.4 He, however, admitted that his son Manpreet Singh was the registered owner of Maruti Swift bearing registration No. DL8CR 8989.
CC No. 05/2016 CNR No. DLCT01-004642-2015 page 6 of 41 4.5 He desired to lead evidence in defence and examined six witnesses viz DW-1
Ms. Aslam Khan (for proving report given by her under RTI Act 2005), DW-2 Charan Dass, Security Guard of Khalsa College (in order to show that a Sikh gentleman was taken in a car by 4-6 persons forcibly). DW-3 HC Ashish Sharma (official of PS Maurice Nagar to show that CBI had apprehended a Sikh gentleman from the spot and he (DW3) disbursed the Sikh students of Khalsa college who were forcibly trying to secure release of the accused), DW-4 Rajiv Dhawan, official from Sony India Pvt. Ltd. (for apprising technical specifications of Sony DVR), DW-5 Ashwani Sonik, photographer(for proving that CCTVs were installed at the spot i.e. near Khalsa College) and DW-6 Ms. Aditi Singh, officer from Maruti Suzuki India Ltd. (for explaining dash board/storage space in Swift VDI).
RIVAL CONTENTIONS 5.0 Sh. Rao, Ld. Sr. PP CBI has asserted that the prosecution has been able to prove its case to the hilt.
5.1 According to Sh. Rao, the verification call, contained in memory card Ex. PW 7/5 (Q-1), clearly indicated the demand. According to him, complainant along with other trap team members left for Operation Cell Office where complainant was scheduled to meet the accused and to handover the bribe amount. DVR was also given to the complainant and the conversation recorded therein also clearly indicts the accused. He has referred to the conversation contained in memory card Ex. PW 7/16 (Q-2). He has also asserted that when the CBI team surrounded the vehicle of the accused, immediately, the recovery was made from the dashboard of the car of the accused. Thus, according to him, recovery also stands proved amply.
5.2 He has also strongly relied upon the scientific evidence, i.e. report of hand wash, report of voice expert as well as CDR. He has contended that the transcription prepared on the basis of conversation contained in Q-1 and Q-2, clearly suggests the CC No. 05/2016 CNR No. DLCT01-004642-2015 page 7 of 41 demand, acceptance and recovery. He has added that minor infirmities and contradictions are bound to appear in every case and infirmities which do not go to the root of the matter and do not touch the core of the case are liable to be brushed aside.
5.3 According to Sh. Rao, even if there was any lapse or omission on the part of the investigating officer, that alone cannot be made basis for passing of any benefit to the accused. In this regard he has relied on Hema Vs. State (2013) 10 SCC 192.
5.4 Sh. Rao has also claimed that instructions given in CBI Crime Manual are in the shape of guidelines and do not have any statutory force and any infraction of such instructions would not vitiate the proceedings.
5.5 He has asserted that the accused does not dispute that he had a meeting with complainant in his office and later they both were seen travelling together in the car of the accused and if at all the intention of the accused was bonafide, he would not have permitted the complainant to accompany him against whom a matter was pending adjudication.
5.6 All such contentions have been refused by defence.
5.7 Sh. Manoranjan, Ld. defence counsel has contended that there are number of serious contradictions in the statements of prosecution witnesses and the version appearing on record is confusing and conflicting. It has been argued by him that neither the demand nor the acceptance much less the recovery stands proved. According to him, it is not clear as to from where the alleged recovery was made, i.e. whether the entire amount was recovered from the dash board of the car or part from dash board or part from the floor of the car. According to him, CBI has to prove its original case and cannot be permitted to take advantage from the weakness, if any in defence version. He has also supplemented that there is not enough clarity whether the amount was allegedly put in the left dash board or right dash board or in the open space situated above the dash board.
CC No. 05/2016 CNR No. DLCT01-004642-2015 page 8 of 41 5.8 He has also challenged the report of chemical expert while referring to the deposition of the relevant witnesses. 5.9 According to him, the electronic evidence is not reliable at all as nobody
knows as to on what basis, the transcription had been prepared. According to him, the prosecution seems confused as to which particular device was used for preparation of the transcription as witnesses have deposed about use of multiple devices like pen drive, computer, laptop, audio cassette and memory card. According to him even otherwise transcription prepared on the basis of secondary evidence has no meaning.
5.10 Sh. Manoranjan has also contended that there are material contradictions amongst the testimony of independent witnesses, both of whom were eventually declared hostile by the prosecution. He has asserted that that instructions contained in CBI Criminal Manual are required to be followed scrupulously. He has also claimed that the actual site plan, which had been prepared at the spot, was destroyed for the reasons best known to the prosecution and no necessity was felt of collecting the CCTV footage from neutral place which would have reflected the true occurrence.
5.11 Sanction has also been challenged.
5.12 Both the sides have also placed his reliance upon various judgments.
EVALUATION OF EVIDENCE 6.0. I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record in the backdrop of the aforesaid contentions made at the bar.
6.1. I would be evaluating the evidence under various heads viz Verification proceedings, Trap proceedings, Recovery of the alleged bribe amount, Report of CC No. 05/2016 CNR No. DLCT01-004642-2015 page 9 of 41 chemical examiner, Report of voice expert etc. 6.2 I would also advert to cited precedents at appropriate places.
VERIFICATION PROCEEDINGS 7.0 Complainant Vipin Kumar approached CBI with a handwritten complaint. Such complaint has been proved as Ex. PW 7/1 (D-2).
7.1 In such complaint, he had claimed that SI Nirmal Singh of Operation Cell, Maurice Nagar was making threatening calls to him for the last 8-10 days and was demanding a sum of Rs. one lac in lieu of exonerating him in one complaint against him relating to jewellery.
7.2 Right here, I would also make reference to the alleged complaint which had been filed against Vipin Kumar. It was at the behest of Poonam Aggarwal @ Anchal. According to the case of the prosecution, Poonam Aggarwal had given a complaint against Vipin Kumar which was lying with the accused. In such complaint, Poonam Aggarwal had alleged that she had come in contact of Vipin whom she used to meet and who had taken her one ring and when demanded back, Vipin kept on refusing to return the same on false pretext. Such complaint was allegedly torn by the accused in order to win confidence of Vipin Kumar. The torn pieces were assembled together and such complaint has been proved as Ex. PW1/2.
7.3 Poonam Aggarwal was contacted during the investigation and her specimen handwriting was also collected. Her specimen handwriting (contained in Ex. PW 9/1) and her said complaint were sent to Handwriting Expert along with the specimen handwriting of accused. Handwriting Expert came to the conclusion that the person who had written the specimen handwriting mark S-1 to S-4 (Ex. PW 9/1) was the person responsible for questioned writing mark Q-1 (Ex. PW1/2). There does not seem to be CC No. 05/2016 CNR No. DLCT01-004642-2015 page 10 of 41 any dispute with respect to the aforesaid fact. Moreover, Poonam Aggarwal has graced the witness box and in her testimony, she claimed that she was a dancer and knew complainant Vipin Kumar for the last 2-3 years. She developed friendship with him and they even went to Shimla together. She deposed that she purchased Gold Diamond Ring worth Rs. 74,000/- for her husband from her savings. She gave the same to Vipin Kumar to check the size. Vipin Kumar put it in his finger and asked for her nod to wear the same for few days. Later when she demanded her such ring back, he refused to return. She also narrated the sequence of events as to how she came to know about accused Nirmal Singh. She revealed that accused had told her to approach him in case she had any problem in future. This is how she made complaint against Vipin Kumar to the accused. She also enquired from the accused 2-3 days later about the status of her complaint to which accused assured that he would get her ring back. According to her one day, she had visited the police station also where accused had made a call to Vipin Kumar to come there but Vipin did not turn up.
7.4 Fact remains that such complaint made by Poonam Aggarwal was never diarized. It seems quite probable that perhaps, by using his office influence, he wanted Vipin either to return the ring to Aanchal or to pay up the equivalent amount without any formal registration of case.
7.5 Complainant Vipin Kumar went to CBI office with his handwritten complaint Ex. PW7/1 (D-2) and PW11 Insp. Raman Kumar Shukla (who was then posted as SI) was asked to verify the contents of complaint by Sh. D.K. Barik, SP.
7.6 Such verification was carried out by PW11 Insp. Raman Kumar Shukla in the presence of complainant as well as independent witness Sh. Ashish Tiwari. I have seen testimony of all three of them and undoubtedly, they all have deposed about the aforesaid aspect related to verification.
CC No. 05/2016 CNR No. DLCT01-004642-2015 page 11 of 41 7.7 PW11 Insp. Raman Kumar Shukla has deposed that Sh. D.K. Barik, SP, CBI
had asked him to verify the contents and accordingly he arranged independent witness Sh. Ashish Tiwari. Such witness came to the office of CBI and was introduced to complainant. He was also apprised about the purpose of his attending the proceedings and was read over the contents of the complaint. A DVR and a new memory card were arranged. Introductory voice of independent witness was recorded in said memory card with the help of DVR after ensuring that memory card was blank and thereafter complainant was asked to make a call to the suspect official so that the complaint of complainant could be verified and the conversation between them could be recorded. Call was made at about 1.00 PM and mobile phone of complainant was kept on speaker mode so that conversation is also simultaneously heard by the verification team. Such conversation reflected that complainant and suspect official knew each other and Nirmal Singh was also enquiring about the whereabouts of the complainant and reason of his non-appearance before him at PS Maurice Nagar. Complainant told him that he was late because he could not arrange the amount. He also claimed that instead of Rs. 1 lac, he was able to arrange Rs. 70,000/- only. Such conversation also revealed that suspect official SI Nirmal Singh did not want to indulge in such type of conversation on phone. It is also important to mention that as per transcription of such conversation, accused also indicated that Vipin should return the ring and settle the matter.
7.8 Memory card was thereafter taken out from the DVR. It was marked as Q-1 (Ex. PW7/5). Verification memo was prepared and it was also signed by all three of them i.e. complainant, Ashish Tiwari and Insp. Raman Kumar Shukla. Same has been proved as Ex. PW7/7 (D-3). Such proceedings were concluded by 1.45 PM and on the basis of such verification proceedings, Insp. Raman Kumar Shukla accorded his satisfaction to the effect that SI Nirmal Singh had demanded bribe. Verification report was submitted before Sh. Barik who, accordingly, directed for registration of FIR and entrusted the investigation to DSP K.S. Pathania, ACB/CBI. FIR has been proved as CC No. 05/2016 CNR No. DLCT01-004642-2015 page 12 of 41 Ex. PW7/2 (D-1).
7.9 To the same extent is the testimony of PW7 Vipin Kumar and PW12 Ashish Tiwari.
7.10 PW7 Vipin Kumar has deposed about his acquaintance and association with Poonam Aggarwal @ Anchal. He made reference about demand made by accused Nirmal Singh. He deposed that he had received a telephonic call from accused somewhere in February 2015 who informed him that there was a complaint against him by Anchal regarding taking of her ring. PW7 Vipin Kumar told accused that he had not taken any such ring from her. However, accused called him at PS Maurice Nagar and demanded Rs. 1 lac from him for disposing of such complaint. He went to meet accused at the office of Operation Cell Maurice Nagar where accused Nirmal Singh got written one application/letter from him regarding settlement of the matter between him and Poonam Aggarwal @ Anchal regarding aforesaid ring. It was reduced in writing on 10.02.2015. During that time, accused had also shown him the complaint of Poonam Aggarwal. He deposed that on 11.02.2015, he went to CBI office situated at CGO Complex and made complaint against Nirmal Singh regarding said demand of bribe of Rs. 1 lac. He proved his complaint Ex. PW7/1 and also identified his signatures on FIR Ex. PW7/2.
7.11 PW7 Vipin Kumar deposed that he made a call to accused Nirmal Singh from his mobile number 9899793566 to the mobile number of accused i.e. 9278984591. Such conversation was recorded by CBI through DVR while the mobile phone was put on loudspeaker mode. He also deposed about the fact that memory card was taken out from the DVR and was signed by the witnesses and then sealed. He identified his signature on verification memo and identified the memory card as well.
CC No. 05/2016 CNR No. DLCT01-004642-2015 page 13 of 41 7.12 PW12 Dr. Ashish Tiwari has though admitted that he had also participated in
such verification proceedings but created a flutter or two by claiming that he had reported to CBI office along with Prabal Sadhu, his colleague and that call was not made but received. Fact remains that, as per CBI, Prabal Sadhu was called subsequently i.e. subsequent to the registration of FIR whereas PW12 Dr. Ashish Tiwari seems very certain as according to him, they both had come together. So much so, according to him, after the verification call, even the seal was handed over to Mr. Sadhu. In his cross-examination, Dr. Tiwari reiterated that Prabal Sadhu had come along with him to the CBI office and Prabal Sadhu was with him even during the verification proceedings. Interestingly, PW 14 Mr. Sadhu himself has also deposed that he had come to CBI office with Mr. Tiwari and was with him all along. Moreover, if CBI is to be believed, the call was made to the accused but according to PW12 Dr. Ashish Tiwari, call was rather received.
7.13 PW7 Vipin Kumar has also made reference to the conversation. Such memory card was played during the recording of his testimony. Such memory card is a micro SD card of make "SanDisk" of 4GB capacity marked as exhibit Q-1. It contains one folder, namely 'PRIVATE'. The folder, namely, 'PRIVATE' contains one sub folder namely 'SONY' containing one folder, namely, 'VOICE'. The folder, namely, 'VOICE' further contains five folders, namely, 'FOLDER01', 'FOLDER02', 'FOLDER03', 'FOLDER04' & 'FOLDER05' and one MSF file. The folders, namely, 'FOLDER02', 'FOLDER03', 'FOLDER04' & 'FOLDER05' were found empty. The folder, namely, 'FOLDER01' was found containing three audio files whose details are given below:-
Audio File Duration of File Nature of conversation
(approx)
"150211_001" 11 seconds Contains introductory voice of Dr. Ashish
Tiwari
"150211_002" 01 minute 24 seconds Verification call
CC No. 05/2016 CNR No. DLCT01-004642-2015 page 14 of 41
"150211_003" 14 seconds Contains introductory voice of Dr. Ashish
Tiwari
7.14 I would deal in detail with respect to the manner of preparation of transcription
in the later part of my judgment.
7.15 PW7 Vipin Kumar deposed that when the verification call was made, he told
Nirmal Singh that he was not able to arrange full bribe amount of Rs. 1 lac and told him that he was able to arrange Rs. 70,000/- only. Such conversation contained in memory card Q-1 was played and he admitted his voice as well as voice attributed to accused Nirmal Singh and made reference to transcription accordingly. Fact remains that the alleged transcription nowhere shows that accused had himself made any enquiry or put any demand of one lac though it does indicate that accused did not like the complainant to talk about money on phone. Such fact was, however, not specifically deposed by Vipin in his deposition. Complainant, as per transcription, mentioned about bribe money by using word "sattar ho paye sir", "sattar ka intzam ho paya ji". He deposed in witness box that he had told the accused that he was able to arrange Rs. 70,000/- but in transcription, the amount is not mentioned in full and rather referred as 'sattar'.
7.16 Manner in which accused Nirmal Singh kept on talking to complainant during such conversation and asking him not to make reference to such thing on phone may be somewhat questionable but fact remains that there is no explicit demand as such initiated from his side.
TRAP PROCEEDINGS 8.0 On the basis of such verification call, FIR was eventually registered and Sh. K.S. Pathania was assigned the job of Trap Laying Officer (TLO).
CC No. 05/2016 CNR No. DLCT01-004642-2015 page 15 of 41 8.1 PW15 Sh. K.S. Pathania has deposed that for the purposes of laying trap, he
along with DSP Deepak Gaur, Insp. Sanjay Upadhayay, Insp. H.S.K. Singh, SI Ankit Chopra, SI R.K. Shukla, two independent witnesses Ashish Tiwari and Prabal Sadhu and complainant gathered at about 2.05 PM at CBI, ACB Branch Office, Lodhi Road, Delhi. He introduced team members with one another and informed them about the purpose of assembling. Contents of complaint were read out to all present. Verification memo was also read over. Members of the trap team also cross-questioned the complainant and after being satisfied, further proceedings were carried out.
8.2 As per testimony of Sh. K.S. Pathania, complainant then produced a sum of Rs. 70,000/-. Details of such currency notes were noted down in Annexure A which was also signed by all the members of the trap team. Handing over memo Ex. PW7/8 (D-4) was prepared. Insp. Sanjay Upadhayay explained the characteristics of phenolphthalein powder and its demonstration was also done. A DVR was arranged and its features were also explained to all present and a fresh memory card was arranged after ensuring that the memory card was blank, voices of the independent witnesses were recorded in the memory card and DVR was handed over to complainant with direction to keep the same in hidden position and to switch on the same only when he came in contact of accused. Dr. Ashish Tiwari was directed to act as shadow witness and was asked to remain close to the complainant so that he could overhear and see the transaction.
8.3 PW7 Vipin Kumar was directed to give signal on mobile phone of TLO once the transaction of bribe money had taken place. Thereafter, complainant, independent witnesses and CBI team members including TLO washed their hands with the help of soap and water. TLO carried with him kit containing stationery, sealing material, sodium carbonate, Rs. 1,000/- for incidental expenses, seal etc. CC No. 05/2016 CNR No. DLCT01-004642-2015 page 16 of 41 8.4 As per Sh. Pathania, during handing over proceedings, two calls from accused were received on mobile phone of accused and these were also recorded in the memory card with the help of DVR as the complainant had been directed to record the call of the accused whenever he received the same. Said aspect has been corroborated by other witnesses.
8.5 PW7 Vipin Kumar has also deposed about preparation of handing over memo, demonstration relating to treating of GC notes with powder, arrangement of DVR and new memory card, explanation of the features of DVR, recording of specimen voice etc. He also deposed that he was asked to put the DVR in hidden position in his vest and was instructed about how to switch it on and switch it off. He also deposed that he was instructed that when accused had accepted the bribe, he (Vipin) would give signal by making a call to Sh. Pathania. He also made reference to the calls which he received from accused while they all were in CBI office. Thereafter, they left CBI office for the spot in two CBI vehicles. Version of both independent witnesses, namely, PW12 Dr. Ashish Tiwari and PW14 Prabal Sadhu as well as of PW11 Insp. Raman Kumar Shukla is also in synchronization with the version of complainant and TLO upto the arrival of trap team near the workplace of accused.
8.6 Trap team reached near the office of Operation Cell, Delhi Police situated in Maurice Nagar at about 3.20 PM. PW7 Vipin Kumar has deposed that he and Dr. Ashish Tiwari (shadow witness) got down from the vehicle near office of accused and started going towards his office. Dr. Ashish Tiwari was behind him while maintaining some distance. Accused Nirmal Singh met him at the main gate of the Operation Cell as he was waiting for him and then he took him (complainant) inside the office. As per the case of prosecution, though Ashish Tiwari was directed to act as shadow witness but keeping in mind the fact that accused had taken the complainant inside the compound of Operation Cell, which was having lot of security, there was no possibility of Ashish Tiwari CC No. 05/2016 CNR No. DLCT01-004642-2015 page 17 of 41 gaining any entry inside and, therefore, he was left with no option but to remain outside and wait outside.
8.7 PW7 Vipin Kumar has deposed that he had already switched on the DVR the moment he got down from CBI vehicle. Such DVR was switched off only after the pre- designated signal was flashed by the complainant and after the trap team surrounded the vehicle in question. Duration of such recording is of around 38 minutes. Right here, I would like to make mention about Memory card marked exhibit Q-2. It is a micro SD card of make "SanDisk" of 4GB capacity. It contains one folder, namely 'PRIVATE'. The folder, namely, 'PRIVATE' contains one sub folder namely 'SONY' containing one folder, namely, 'VOICE'. The folder, namely, 'VOICE' further contains five folders, namely, 'FOLDER01', 'FOLDER02', 'FOLDER03', 'FOLDER04' & 'FOLDER05' and one MSF file. The folders, namely, 'FOLDER02', 'FOLDER03', 'FOLDER04' & 'FOLDER05' were found empty. The folder, namely, 'FOLDER01' is found containing eight audio files whose details are given below:-
Audio File Duration of File Content
(approx)
"150211_001" 09 seconds Introductory voice of Dr. Tiwari
"150211_002" 11 seconds Introductory voice of Mr. Sadhu
"150211_003" 11 seconds Conversation with one Mahipal
"150211_004" 56 seconds Conversation between Vipin and accused
on Mobile
"150211_005" 27 seconds Conversation between Vipin and accused
on Mobile
"150211_006" 38 minutes Conversation between Vipin and accused
when they met each other.
"150211_007" 11 seconds Voice of Dr. Tiwari
"150211_008" 13 seconds Voice of Mr. Sadhu
CC No. 05/2016 CNR No. DLCT01-004642-2015 page 18 of 41
8.8 Inside the Operation Cell, as per Vipin Kumar, accused talked to him and had
even shown him the complaint filed by Poonam Aggarwal on the basis of which he had already demanded a bribe of Rs. 1 lac from him. His testimony further indicates that accused was suspicious whether Vipin Kumar had come alone as accused had even gone towards the gate to find out whether anyone else was there or not. Thereafter, accused took him inside his Maruti Swift car of white color and also got the dialed/received numbers deleted from the mobile of complainant with the assistance of some person in Operation Cell. Accused had also claimed that he wanted to deposit his official weapon in PS Maurice Nagar. However, he did not deposit the same though he tried to take him inside PS Maurice Nagar but since he refused, even the accused did not go inside. Thereafter, they again sat in the car and accused drove the same claiming that they would go to Tis Hazari. When the vehicle reached near Khalsa College, complainant could notice that CBI vehicles were following them. He then requested accused to let him get down. Accused then asked complainant to put the bribe amount in the dashboard of the car. Fact remains that the alleged transcription nowhere contains any such verbal demand. Initially, complainant put the same in the dashboard but accused then asked him to take out the same and gave the same in his hand. Accused then kept such amount with him. Complainant then asked him to give him back Rs. 1,000/- or Rs. 2,000/- as he was not having any money for his expenses. When they reached at the red light of Khalsa College, complainant made a call to Sh. K.S. Pathania. However, when complainant was making such call, accused tried to push out the complainant out of the car and also tried to snatch his mobile phone to find out as to whom he had given such call. By that time, CBI officials in their vehicles reached adjacent to the car of the accused. Accused Nirmal Singh tried to flee away from the car but CBI officials caught him by his hands. He switched off the DVR immediately after coming out of the car and informed CBI team that bribe money was lying in the dashboard of the car. This is little astonishing as in the previous breath, Vipin had claimed that from the dashboard, the amount was picked up by him and had been CC No. 05/2016 CNR No. DLCT01-004642-2015 page 19 of 41 handed over to accused and accused had kept the same with him. He further deposed that Independent witnesses reached near the car and found that some notes were scattered in the car. He deposed that by that time, crowd had also gathered and situation was pacified only after CBI Officials had flashed their identity cards to the public persons.
8.9 PW12 Dr. Ashish Tiwari has deposed that after complainant and accused had gone inside the PS, Insp. Sanjay Upadhayay, who had also entered inside the PS, had come out and told that complainant and accused had left in white swift car having number 8989. This is also confusing. CBI has not been able to provide satisfactory explanation about said unusual aspect related to entry of Insp. Sanjay Upadhayay inside the complex. Moreover, no other witness has said anything of that sort. PW12 Dr. Ashish Tiwari has deposed that initially, car disappeared and after sometime, they were able to see the car in the nearby area. He deposed that complainant gave a call to Mr. Pathania when they had crossed Khalsa College and reached T-Junction little ahead of Khalsa College. All the team members got down from their respective vehicles and rushed towards Swift car of accused. Mr. Pathania and Mr. Deepak Gaur opened the door of the Swift Car and caught accused by his hands and forced him to get down as accused was not willing to get down. He deposed that he also saw one thousand rupee note lying down and one note of rupee of one thousand in crumbled position which accused was throwing away. Dr. Tiwari further deposed that a bundle of notes of rupee one thousand was recovered from the dashboard of Swift Car. He claimed that complainant had told them that notes lying in the dashboard were the same notes and complainant also disclosed that when after payment of money to accused, complainant demanded some money from Nirmal Singh claiming that he was not having any money with him, accused was giving Rs. 2,000/- from his pocket and at that moment, CBI officials had caught accused and in such a situation, one note had fallen on the floor of the car and the other remained in the hand of accused who tried to hide the same and, CC No. 05/2016 CNR No. DLCT01-004642-2015 page 20 of 41 therefore, such note had become crumbled.
8.10 PW14 Prabal Sadhu has also deposed about Swift Car coming out of the PS and the about chasing the same. He also deposed that near T-Point, Khalsa College, Mr. Pathania came out of his car and confirmed handing over of bribe by gesture. According to him, Nirmal Singh was surprised to see them. He deposed that complainant informed them that bribe amount was in the dashboard of the car and such amount was recovered by Dr. Ashish Tiwari from the dashboard on the direction of Sh. Pathania.
8.11 He did not talk about notes lying on the floor of the car or any note in the hand of accused but in his cross-examination dated 01.06.2016, he created sort of chaos by claiming that 'major chunk of GC notes' had been recovered from the dashboard of the car and if one and two notes had fallen down on the floor of the car, he did not remember the same. His such utterances are perplexing one. What he means by 'major chunk' is anybody's guess.
8.12 PW11 Insp. Raman Kumar Shukla has deposed that complainant and shadow witness proceeded towards PS Maurice Nagar and the other members were also proceeding towards them in a clandestine and scattered manner by keeping distance. He deposed that accused and complainant went inside PS Maurice Nagar and after about 25 minutes, accused and complainant were found coming out of the PS in Swift car. According to him, car was driven in a manner as if the car driver apprehended that he was being chased by someone. According to him, TLO alerted them near red light of Khalsa College that bribe transaction was complete and then they immediately got down from the car and surrounded the car of the accused. Accused was trying to flee away by pushing and also threatening that he was a police official. Complainant then informed that money was kept in the dashboard. DVR was taken CC No. 05/2016 CNR No. DLCT01-004642-2015 page 21 of 41 back from the complainant and was switched off by him. Complainant revealed to CBI team that accused had taken bribe amount from him and had kept the same in the dashboard and that he had given the bribe amount as per specific demand of accused. According to him, 70 GC notes of Rs. 1,000/- were recovered from the dashboard of the car. He does not make a whisper about any note lying on the floor of the car.
8.13 TLO Sh. Pathania has also deposed on the same lines. According to him, they had reached near the office of Operation Cell of Delhi Police, Maurice Nagar at 3.20 PM when complainant and shadow witness started going towards the office of Operation Cell. He deposed that complainant and accused then went inside the gate of Operation Cell but shadow witness kept on standing near the gate. Other members of the CBI team took their respective position nearby. He deposed that at about 3.55 PM, white Maruti Swift Car having registration number DL-8CR-8989 driven by accused was found coming out of the office of Operation Cell and complainant was also sitting in front adjoining seat. He did not claim that any information to said effect was given by Inspector Sanjay. TLO alerted team members and independent witnesses and started chasing said Swift car. He also deposed that accused was driving in a manner as if he was under some suspicion. Thereafter, a call was received by him (Mr. Pathania) at 4.12 PM from the complainant and complainant informed him about bribe transaction by saying "Sir ho gaya". He then alerted other team members and intercepted the Swift car. He deposed that he tried to take out the key of the car. Complainant indicated by gesture that bribe amount was lying in the dashboard of the car. He also deposed that accused was trying to run away who was caught hold by Insp. Sanjay Upadhayay and Insp. H.K. Singh. Simultaneously, Mr. R.K. Shukla took the DVR from complainant and put it on 'off" mode. According to him, they were able to control accused Nirmal Singh with great difficulty and on his direction, shadow witness Dr. Ashish Tiwari recovered money from the dashboard of the car of accused.
CC No. 05/2016 CNR No. DLCT01-004642-2015 page 22 of 41 8.14 Thus, from the testimony of all the aforesaid witnesses, though the bribe had
been allegedly given by the complainant to the accused, such amount, as per complainant, was initially kept by him in the dashboard and thereafter as per the direction of the accused, such amount was handed over to accused which accused kept with him. Though as per case of prosecution, the entire amount of Rs. 70,000/- had been recovered from the dashboard of the car, as far as complainant and Dr. Ashish Tiwari are concerned, they seem certain and according to both of them, out of the aforesaid bribe amount of Rs. 70,000/-, few notes were lying scattered on the floor of the car.
8.15 Indubitably, there has to be a uniformity and consistency with respect to said important aspect of the matter. It is indeed curious as to how the other spot witnesses i.e. Sh. Prabal Sadhu, TLO Mr. Pathania and SI Raman Kumar Shukla are blissfully ignorant about the said crucial aspect of few notes lying on the floor of the car. I cannot be unmindful of the fact that as per CBI, the accused seems to be very cautious all along. He was checking and cross-checking even at the "operation cell office" whether complainant was accompanied by any one or not. He remained with complainant for quite sometime in his office and it is not explained by CBI as to what stopped him from taking money inside his own office. After all, it would have been better place for him instead of taking complainant in his own car and then accepting money in a running car under public gaze.
8.16 Moreover, as noted above, there is confusion as to where the money was actually kept and eventually recovered.
8.17 As per complainant Vipin Kumar, he had put the money on the dash board and then he was asked by accused to take out the money from the dash board and to give him. He then gave money to the accused in his hand. If at all he had handed over money to the accused which he even kept in his pocket, then would CBI explain as to CC No. 05/2016 CNR No. DLCT01-004642-2015 page 23 of 41 how the money could be recovered from the dash board situated on the left side? Testimony of PW-12 Dr. Ashish Tiwari, independent witness also suggests that the bribe money had perhaps reached the pocket of the accused.
8.18 Thus, there is confusion and mystification as to from where the money was recovered. It is not clear whether entire money was recovered from the dash board. It is not clear whether major chunk of the notes were recovered from the dash board. It is not clear whether one or two such notes were recovered from the floor of the car. It is not clear as to how many notes were lying scattered on the floor of the car. It is not clear whether such GC notes had already reached the pocket of the accused. It is also not clear whether money was put in the dash board or on the empty space situated just above the dash board.
8.19 The testimony of complainant PW-7 Vipin Kumar and PW-12 Dr. Ashish Tiwari cannot be ignored casually on said vital aspect. They both seem very specific and definite that some notes from the bribe amount were recovered from the floor of the car whereas such theory has been, out-rightly, rejected by CBI officials. Since they all had rushed towards the car of the accused together, it was expected that they would also depose in complete harmony and in uniformity. If at all few notes were found lying on the floor of the car, there was no one to have stopped TLO and other CBI officials to have noticed the same and to have said so. There was also no one to prevent CBI to have prepared separate recovery memos of all such notes instead of hiding the aforesaid aspect all together.
PREPARATION OF TRANSCRIPTION 9.0 There is not enough of clarity as to when the transcription was prepared.
9.1 There is also not enough clarity as to how the transcription was prepared.
CC No. 05/2016 CNR No. DLCT01-004642-2015 page 24 of 41 9.2 Let me now refer to the evidence of the concerned witnesses on said vital aspect of preparation of transcription. 9.3 As per PW-16 Sh. Joseph Krelo (Investigating Officer), the transcription had
been prepared on 13.3.2015. He was shown voice identification-cum- transcription memo (D-16) and he explained that, initially, he had prepared a draft which was finalized on 13.3.2015. According to him, the team members assembled in the office of CBI at 12 Noon on 13.3.2015 and then recording Q-1, Q-2 and S-1 was heard and the draft which had already been prepared by him was improved upon. According to him, during such preparation, complainant had identified his voice and voice of accused Nirmal Singh and the witnesses had also identified their voices. He also revealed that the transcription had been prepared on the basis of investigating copy. He also claimed in his cross-examination that TLO had not prepared any copy from memory card during the trap proceedings. He admitted that when memory cards and DVR were sent to CFSL, it was categorically mentioned in the letter that a copy be prepared immediately for the purposes of investigation.
9.4 Ld. defence counsel has contended that since report from CFSL had been received much later, i.e. beyond 13.03.2015, it is indeed baffling as to on what basis the transcription was prepared without any media or copy thereof. According to Sh. Rao, initially when the original memory cards were sent to CFSL, these were not accepted by CFSL as they wanted to have transcription also. Thereafter, IO met the concerned CFSL official and apprised that CBI did not have either any copy of the device or inscription. On such information CFSL eventually accepted the memory cards and DVR and before preparing final report about voice, investigating copy was prepared by CFSL which was collected by the official of CBI from CFSL. He has also stated that such facts can be verified from the case diary. Even if I assume the aforesaid to be true, it was sine qua non on the part of CBI to have placed on record any such communication either from CFSL or from CBI. Transcription prepared on the basis of investigation copy, the origin CC No. 05/2016 CNR No. DLCT01-004642-2015 page 25 of 41 of which is not amply clear would not carry any real sanctity. Reference in this regard be also made to Girwar Singh vs. CBI2016 SCC OnLine Del 2329.
9.5 Moreover, it is not abundantly clear whether transcription was prepared only on 13.3.2015 or whether any such exercise was undertaken on 11.3.2015, which continued upto 13.3.2015. Conflicting versions are appearing on record. As per Sh. Krelo, he initially prepared the draft transcription on 11.3.2015 without any assistance of complainant or independent witnesses. This was not at all warranted and justifiable as he was in no position to comment about the voices. He then called complainant on 12.3.2015 and complainant remained with him throughout the day when transcription was further modified on his official laptop. However, as per PW-7 Vipin Kumar, he had come to CBI office for the purpose of transcription only on 13.3.2015. In his cross- examination dated 21.12.2015, he categorically claimed that transcription was prepared on 13.3.2015 when he was called by Sh. Joseph Krelo.
9.6 As far as other two independent witnesses are concerned, they have also claimed that they had visited CBI office on 13.3.2015 for preparation of transcription. It will be important to mention right here that as far as PW-12 Dr. Ashish Tiwari is concerned, in his examination-in-chief, he did not mention anything, of his own, with respect to preparation of transcription much less on 13.3.2015. Accordingly, he was cross-examined by the prosecution since he was found resiling from his previous statement. During such cross-examination, besides referring to various other aspects, he deposed that he was called at CBI office after one month. Complainant was also present there who identified the voice of Nirmal Singh and then transcription was prepared simultaneously in writing in his presence and he signed the same. Such transcription memo has been proved as Ex. PW 7/20 (D-16) and the transcription as Ex. PW 7/6 while claiming that it was the same transcription which has been prepared on the computer simultaneously with the hearing of the voice of accused Nirmal Singh and complainant. It, therefore, means that no draft was already prepared and rather the CC No. 05/2016 CNR No. DLCT01-004642-2015 page 26 of 41 entire transcription was prepared on 13.3.2015 itself after hearing the voices with the help of computer.
9.7 PW-14 Sh. Prabal Sadhu also did not make even a whisper regarding transcription memo and, therefore, Ld. PP for CBI had to cross-examine him also by declaring him hostile and during such cross-examination only, he narrated about the preparation of transcription on 13.3.2015. He also revealed that transcription was prepared on the basis of investigating copy of audio cassettes.
9.8 This aspect relating to use of "audio cassette" has complexed the scenario. If Sh. Rao is to be believed, then CBI had obtained one compact disk from CFSL which was used as investigation copy though fact remains that there is no documentary proof of supply of such investigation copy to CBI.
9.9 Prosecution witnesses have come up with different versions about nature and type of investigation copy. PW-12 and PW-14 are referring investigation copy as the "audio cassette" whereas according to complainant Vipin Kumar when the transcription was prepared, a "pen-drive" was used. Thus, nobody knows as to how the transcription was prepared - whether with the help of alleged compact disk or from pen-drive or from audio cassettes. It needs no discerning eyes to distinguish between compact disk, audio cassette and pen-drive. Curiously, even the transcription memo (D-16) uses the word "audio cassette". Admittedly, no "audio cassette" is either part of the case of the prosecution or was ever used or produced before the court during the trial. I cannot ignore such glaring aspect by assuming it to be a case of mere typographical or clerical error.
9.10 Thus, there is a complete chaos as to when the investigation copy was prepared. It is also totally unclear whether investigation copy was "audio cassette" or "compact disk" or "pen-drive". It is also not clear as to when the transcription was prepared - whether on 13.3.2015 or prior to that. IO also should not have ventured into CC No. 05/2016 CNR No. DLCT01-004642-2015 page 27 of 41 preparing the "draft transcription" all by himself without taking any assistance from the complainant and the independent witnesses. After all, he was not in a position to identify the voices. Moreover, there is no harmony between his version and version of complainant as according to IO, draft transcription was prepared on 11.3.2015 and he had called complainant on 12.3.2015 for making the correction which fact has been out rightly disowned by the complainant. Moreover as per I.O., the transcription was 'by and large' correct. This was not the correct thinking on his part because addition or omission of even one word here or there could have communicated something totally contradictory and, therefore, such transcription ought to have been absolutely correct.
9.11 There is also not enough clarity with respect to the DVR in question. If CBI case is to be believed a new DVR was used in the present case. PW-14 Prabal Sadhu has categorically admitted in his cross-examination that the DVR had been brought in sealed condition. He, however, did not know whether DVR was having internal memory or not. PW11 Inspt. Raman Kumar Shukla has also admitted in cross-examination dated 25.1.2016 that DVR in question was contained in a new sealed packed case. Interestingly, such DVR was never examined by CFSL. Reference be made to report Ex. PW 13/B dated 18.5.2015 given by Dr. Rajinder Singh, Director CFSL/Chemical Examiner. In his report, he claimed that the DVR was returned to the forwarding authority in original sealed condition since no query had been raised by CBI regarding DVR.
9.12 Right here I would like to mention that such DVR was seen by the court at the time of hearing final arguments on 11.8.2017. Out of curiosity, it was opened. When its properties were checked, it was noticed that in the folder 'Voice' there were 5 further folders (described as FOLDER01, FOLDER02, FOLDER03, FOLDER04 and FOLDER05) besides 2 files one was TMP file and other was MSF file. FOLDER01 was containing two mp3 files, i.e. Z0000001 and Z0000002 having size of 90kb and 704kb respectively but other folders were not containing any file. As per the properties of these CC No. 05/2016 CNR No. DLCT01-004642-2015 page 28 of 41 five FOLDERS01 to FOLDERS05, there seem to have been last accessed on 13.10.2014 at 9:27. However, the two files Z0000001 and Z0000002, as per the properties, were created on 1.1.2012 which otherwise have nothing to do with the present case. It is nobody's case that any such file got created accidentally in DVR. It cannot be even otherwise.
9.13 Be that as it may, since DVR contained audio files having older creation dates, it is clearly suggestive of the fact that DVR was not a new one. CBI has failed to explain the aforesaid anomaly. Moreover, the manner in which the blankness of DVR was ensured is virtually unheard of. It is different gadget than audio cassette. Audio cassette may be played for ensuring the blankness and newness but same is not true for a device like DVR. One only needs to see the folders and files, if any and there is no need to play the DVR repeatedly for said purpose.
9.14 Thus, the transcription, in view of above discussion, does not carry much value.
DEPOSITION OF VOICE EXPERT 10.0 PW-13 Dr. Rajinder Singh had examined and evaluated the micro SD cards (Q-1, Q-2 and S-1).
10.1 His examination-in-chief is very brief. He has merely deposed that on 19.2.2015, Physics Division of CFSL had received 4 sealed parcels from SP ACB CBI, New Delhi. The forwarding letter received from CBI has been proved as Ex. PW 13/A. As per such letter Ex. PW 13/A (D-8), all the three memory cards as well as DVR were sent to CFSL with request to compare the specimen voice contained in memory card S-1 with the questioned voice contained in memory cards Q-1 and Q-2 and to give opinion whether specimen voice tallied with the questioned voice. It was also requested CC No. 05/2016 CNR No. DLCT01-004642-2015 page 29 of 41 whether any of the memory card/conversation had been tampered with or not. It was also requested that four copies of each memory card may be prepared and supplied to CBI and one such copy may be prepared immediately for investigation purpose. As regards DVR, no specific opinion seems to have been sought from CFSL.
10.2 As per his report Ex. PW 13/B, after conducting the auditory examination and after subjecting the material in question to spectrographic analysis and keeping in mind acoustic features, Dr. Rajinder Singh opined that the questioned voice of Nirmal Singh and specimen voice of Nirmal Singh were similar in respect to their linguistic and phonetic features. Voice spectrographic examination of questioned voice and specimen voice was found similar with respect to formant, frequencies distribution, intonation pattern, number for formants and other general visual features in voice grams and thus it was opined by Dr. Rajinder Singh that the questioned voice (pertaining to accused Nirmal Singh) was the probable voice of Nirmal Singh. It was also observed by Dr. Rajinder Singh that the recording contained in micro SD cards Q-1, Q-2 and S-1 revealed that there was no pause, no discontinuity of speech, no change in background noise in speech conversation, no spikes in speech wave form and hence, these might not have been tempered with.
10.3 Report of Dr. Rajinder Singh has been assailed by defence on various counts. According to defence, he is not expert in voice recognition and was not authorized to give any such opinion as he was not notified under Section 79-A of Information Technology Act, 2008. It has also been argued that in order to ensure the authenticity of the recording, no hash value was generated either by CBI or by CFSL and, therefore, it is not clear whether recording in question are unedited or unaltered or not. It has been argued by Sh. Manoranjan that Dr. Singh had admitted in his examination that he did not mention the hash value anywhere. It is also argued that as per report that there was no change in the background voice which is quite mystifying. It certainly would have been more appropriate if hash value had been generated by CBI CC No. 05/2016 CNR No. DLCT01-004642-2015 page 30 of 41 and crosschecked by CFSL which would have guaranteed that there was no addition or alteration in the recordings in question.
10.4 According to Sh. Manoranjan, the background voice of the recording taken in the office would be naturally different from the background voice in the moving car. He has also stated that the opinion of the Dr. Singh is not certain as he has used word "probable voice" and used the word "might not have been tempered" which itself are suggestive of the fact that the opinion is not definite and conclusive.
10.5 Sh. Rao has, however, stated that Dr. Singh is Director of CFSL, CBI and is fully competent to examine the exhibits in question. He has also contended that the background voice means background available in the individual SD card and it is not appropriate for defence to contend that Dr. Singh wanted to indicate that the background voice remains the same in all the three exhibits. He has also stated that Dr. Singh has categorically claimed in his cross-examination that in India, opinion with respect to voice is given under three heads, i.e. Probable (meant for positive identification), Negative identification and no opinion.
10.6 Specimen voice sample was taken by CBI on 11.2.2015 itself when Nirmal Singh was ostensibly in the custody of CBI. Such specimen voice was taken in CBI office after the alleged recovery.
10.7 Legal situation is still somewhat fluid as it is still not settled whether any such accused can be compelled to give voice sample or not. In Ritesh Sinha Vs. State of UP (2013) 2 SCC 355, the question whether Article 20(3) of Constitution of India, which protects a person accused of an offence from being compelled to be a witness against himself, extends to protecting such an accused from being compelled to give his voice sample during the course of investigation into an offence or not. In view of the divergent views expressed by the Hon'ble Division Bench, the matter was directed to be placed before a larger bench of Supreme Court. Sh. Rao has admitted that the judgment of CC No. 05/2016 CNR No. DLCT01-004642-2015 page 31 of 41 larger Bench is still awaited but according to him if the accused is willing to give specimen voice sample, there is no question of Article 20(3) of Constitution of India coming into play.
10.8 As already noticed above, voice sample had been taken same day. Even if accused was willing to give voice sample of his own, since in any eventuality he was to be produced before the court within 24 hours of his arrest, at least such vital aspect should have been shared with the court and it should have been brought to the notice of the court that accused was ready and willing to give voice sample of his own or at least, a formal permission of the court should have also been sought to eliminate possibility of raising of any such argument from the side of defence. It cannot be automatically inferred that voice sample taken on 11.2.2015 in CBI office was given by accused of his own and without there being any compulsion. Moreover, as per PW14 Mr. Sadhu nothing was apprised to accused in this regard and no notice was served upon him before taking his voice specimen. As per PW15 Mr. Pathania, no written notice was served upon accused either.
REPORT OF HAND WASHES 11.0 As per Sh. Manoranjan, phenolphthalein test cannot be said to be a conclusive proof particularly in context of incongruous versions appearing on record in this regard. He has placed his reliance upon C. Sukumaran v. State of Kerala, 2015 Crl.L.J. 1715. As per case of CBI, hand washes were taken of both the hands of the accused as well as of the dash board. These have been described as under:-
S. No. Charge Right Hand Left Hand Right Dash
sheet/Witness/ Wash (RHW) Wash (LHW) Board Wash
Report (RDBW)
1. As per Charge Pink Turbid Pink
Sheet
2. PW-7 Red No change in Red
colour of
CC No. 05/2016 CNR No. DLCT01-004642-2015 page 32 of 41
solution
3. PW-11 Pink Turbid Pink
4. PW-12 Light Pink Light Pink Light Pink
5. PW-14 Pink Pink Pink
6. PW-15 Pink Turbid Pink
7. Report of PW-2 Pink Very light Pink Colourless
11.1 I have also perused the testimony of PW-2 V.B. Ramteke, Senior Scientific
Officer-I (Chemistry) who had examined the aforesaid hand washes as well as his report Ex. PW 2/2 (D-11) of the aforesaid sealed contents. All the three exhibits gave positive test for the presence of phenolphthalein.
11.2 In his deposition, he categorically claimed that when he had received these three bottles, none of them was having turbid contents. He also claimed that there was no fixed time limit when coloured solution could become colurless.
11.3 As per Ld. defence counsel, it is not clear as to for which particular place of the car, the wash has been described as RDBW. According to him, it was specifically recorded during that trial that "RDBW" stood for "right dash board wash". According to him, there was no dash board situated at the right side of the car and since wash has been described as "right dash board", there is something amiss with respect to the case of prosecution. I, however, would not fall in the jugglery of words and by using RDBW, CBI perhaps wanted to show that the wash was of right side of dash board and not right side dash board.
11.4 Be that as it may, the witnesses have though come up with some deviation as regards the colour of solution.
CC No. 05/2016 CNR No. DLCT01-004642-2015 page 33 of 41 11.5 According to Sh. Manoranjan, there is one more unusual aspect of the case
which clearly suggests that phenolphthalein test is of no use. As per PW7 Vipin Kumar, accused Nirmal Singh tried to push him out of the car. He also deposed that accused Nirmal Singh had also tried to snatch his mobile phone in order to find out as to whom he had given the missed call after the alleged handing over of the money. It is not difficult to imagine that in such a scenario when accused was allegedly trying to push the complainant and also trying to snatch the mobile phone of complainant from his hands, the phenolphthalein powder might have transmitted to the hands of accused as by that time, as per the case of CBI, bribe money had been allegedly paid by Vipin Kumar. Since Vipin Kumar had already given the notes and thereafter had made the call to TLO and since thereafter only the accused had attempted to snatch the mobile phone of complainant from his hands, such possibility cannot be ruled out and, therefore, in view of aforesaid peculiar backdrop of the case, the report of hand-wash, in itself, may not serve the requisite purpose. Defence seems fully justified in placing reliance upon Meena vs. State of Maharashtra (2000) 5 SCC 21.
HOLDING BACK A VITAL DOCUMENT 12.0 It seems quite evident from the alleged transcription related to Q-2 that there was a handwritten application of PW-7 Vipin Kumar. Such application was with accused Nirmal Singh when he was with Vipin Kumar in a moving car. PW-7 Vipin Kumar has also admitted in his examination-in-chief that Nirmal Singh had got written one letter/application from him for settlement of the matter between him and Aanchal @ Poonam regarding matter relating to gold diamond ring. He had allegedly written such application on 10.2.2015. Same was also shown to Vipin Kumar during the car-journey and Vipin Kumar also identified the same, if the alleged conversation is to be believed.
12.1 Fact, however, remains that such letter/application has not seen the light of the day.
CC No. 05/2016 CNR No. DLCT01-004642-2015 page 34 of 41 12.2 It was, from all angles, a very crucial piece of document. Who knows in such
letter/application, Vipin Kumar might have mentioned that he had cleared or agreed to clear the outstanding related to ring of Poonam @ Aanchal which would have negated the bribe assumption. Therefore, such letter/application, which was very much at the spot and in the car, should have also been seized by CBI and produced before the car. It was neither seized nor produced. It has been held back.
12.3 It cannot be ruled out that on several occasions, the matters also get settled without any formal registration of the case. There existed a possibility that Vipin Kumar might have tried to settle the matter amicably either by returning the ring or by making the payment of equivalent amount and in such context, the aforesaid letter/application of Vipin Kumar was very crucial. There was no reason for CBI to have withheld such an important document from judicial scrutiny.
CONCLUSION 13.0 Sh. Rao has contended that every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the Act and if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)(d) of the Act. As per defence counsel, it is settled law that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under either of the sections as demand of illegal gratification is sine-qua-non to constitute said offences and unless there is proof of demand of illegal gratification, the proof of acceptance will not follow. Reliance has been placed upon B. Jayaraj vs. State of Andhra Pradesh [(2014) 13 SCC 55] and P. Satyanarayna Murthy vs. District Inspector of Police and another [(2015 (9) SCALE 724]. Sh. Manoranjan has contended that there is nothing to infer demand and mere recovery of notes, which itself is shrouded with mystery, will CC No. 05/2016 CNR No. DLCT01-004642-2015 page 35 of 41 not take the case of prosecution anywhere. Relying on Suraj Mal Vs. State (Delhi Administration) (1979) 4 SCC 725, it has been asserted that mere recovery of money is not sufficient to convict particularly when the substantive evidence is not reliable. It has been argued by him that the version of the prosecution, as to offer and receipt of the bribe money as narrated by the prosecution witnesses, is not inspiring at all. He has also expressed his surprise as why for a gold-diamond ring, which was having wroth of Rs. 70,000/- approximately, Vipin Kumar complainant would gladly agree to pay Rs. 1 lac. Moreover, according to him, the alleged transcription nowhere suggests demand of Rs. one lac as propounded by Vipin Kumar.
13.1 As per Sh. Rao, while relying upon Mukhtiar Singh Vs. State of Punjab AIR 2016 SC 3100, no true witness can escape from making some discrepant details and these should not be given any mileage. I agree that no case would ever be foolproof. However, in a serious criminal trial like the present one, evidence of all the trap witnesses requires a very cautious assessment and careful evaluation for ensuring credibility. The evidence must be tested for its inherent consistency or inherent inconsistency in reference to the account as stated by one witness on being cross checked with the account as stated by the other. Thereafter, probative value of the evidence is to be put into scales for a cumulative evaluation. Degree of proof cannot be stated in mathematical units, but the guiding principle that the evidence must point only towards the guilt and should exclude innocence, must never be lost sight of. Reference be made to Subhash Chand Chauhan vs C.B.I. 117 (2005) DLT 187.
13.2 Needless to reiterate that there is not enough of coherence amongst the testimony of prosecution witnesses which has created a doubt in the mind of the court. In view of the inexplicable deviation to the effect that few notes were found lying scattered in the car on the floor and also that major chunk of notes, not all the notes, were in the dashboard situated on the side where complainant was sitting, the degree of proof should have been much higher than what has surfaced during the trial. Conflicting CC No. 05/2016 CNR No. DLCT01-004642-2015 page 36 of 41 version of spot witnesses has reflected adversely over the credibility of the case set up by CBI.
13.3 Sh. Manoranjan has contended that as per the specific observations and directions appearing in Vineet Narain Vs. UOI (1998) 1 SCC 226, CBI Manual needs to be followed scrupulously and, therefore, the trap proceedings should have been videographed. The bribe was to be paid inside the office of Operation Cell and naturally, it was not possible to videograph the same inside the office of accused. Therefore, defence cannot drive home any advantage on this aspect. Of course, it has also come on record that there were CCTV cameras installed near the spot and if CBI wanted, it could have easily obtained the CCTV footage. Coming from neutral corner, it would have certainly given a strong impetus to the case of prosecution. Reference be made to the testimony of DW1 Ms. Aslam Khan, DCP (Traffic). In February 2016, she was posted as Addl. DCP-I, North District/Public Information Officer and she had supplied information Ex. DW1/A mentioning therein that three CCTV cameras were installed at Khalsa College Red Light, Ring Road, all of which were in working condition as on 11.02.2015. Prosecution cannot pass on the buck onto defence for preservation of CCTV footage. CBI should have itself made a move to obtain the CCTV footage. Nothing of that sort was attempted. Defence has relied upon Tomaso Bruno & anr Vs. State of UP (2015) 3 SCC (Cri) 54 wherein it has been held that it was for the prosecution to have produced the best evidence and omission to produce such best evidence i.e. CCTV footage raises serious doubt about the prosecution case.
13.4 There is not enough of clarity as to what was the reaction of the accused when he was allegedly surrounded by CBI Team. Witnesses have come up with different versions. It is not clear whether accused was trying to run away. It is not clear whether accused was trying to rather push the complainant outside the car. It is not clear whether accused was simply sitting in the car and got surprised by the sudden appearance of CBI officials and was not willing to come down from the car even. It is CC No. 05/2016 CNR No. DLCT01-004642-2015 page 37 of 41 also not clear as to where the GC notes were actually sealed - whether at the spot or in CBI office. According to complainant, such notes were sealed at the spot whereas as per PW12 Dr. Ashish Tiwari, these notes were sealed subsequently in CBI office. As already noticed above, there is mystification as to from where actually the GC notes were recovered. It is not clear whether all such notes were in the dashboard or in the open place above the dashboard. It is not clear whether major chunk of notes was in the dashboard. It is not explained by the prosecution as to why TLO and other CBI officials of trap team could not see that some such notes were lying scattered on the floor of the car. It is also not clear as to how these notes were found in dashboard when according to complainant, accused had kept the notes with him later on. It is also not clear whether the complaint of Aanchal was torn already by the accused before being surrounded by CBI officials or in their presence. It is not clear whether these torn pieces were lying inside the car or outside the car or at both places as different versions are appearing in this regard as well. It is also not clear as to where DVR was actually kept by complainant Vipin Kumar - whether in his shirt or in jacket or in the pocket of his wearing pants.
13.5 As per PW12 Dr. Ashish Tiwari, a rough site plan was prepared at the spot and thereafter another site plan was prepared in the CBI office. PW14 Prabal Sadhu has also claimed in his deposition that site plan which was earlier prepared was destroyed and a new site plan was prepared at CBI office. This has potential to show that CBI was not carrying out its job in the desired manner. CBI had no business to destroy such a vital document and then to prepare a new one at CBI office and, to make things worse, then to project as if it had been prepared at the spot only.
13.6 The manner in which statements u/s 161 Cr.P.C. were recorded leaves much to be desired. If PW12 Dr. Tiwari is to be believed, CBI had itself prepared the drafts statements which fact was highly offensive. CBI had no business to record statement of its own without making any enquiry from the person concerned.
CC No. 05/2016 CNR No. DLCT01-004642-2015 page 38 of 41 13.7 Undoubtedly, accused did not display high standard of morality as was
expected from him. He should not have entered into any sort of self-styled inquiry or investigation without formal registration of the matter. He should not have indulged into any discussion regarding the complaint without diarizing it. However, since Aanchal @ Poonam was reported to be the informer of Operation Cell, quite possibly, accused must have thought of helping and assisting her albeit unjustifiably. His idea of getting the ring or amount equivalent to ring back may not be bad but the manner was certainly.
13.8 As per Sh. Rao, no criminal case would, however, be foolproof and Court should not give any weightage to minor and trivial contradictions and discrepancies. In this regard, he has also relied upon State of UP Vs. M.K. Anthony AIR 1185 SC 48. He has contended that while appreciating the evidence of any witness, the Court is only required to ensure whether the evidence, read as a whole, appears to have a ring of truth or not. There cannot be any qualm with respect to the aforesaid proposition. However, in a serious criminal matter like this, prosecution has to stand on its own legs and has to prove the very story it has come up with. It is not appropriate for prosecution to make out a new case for prosecution. Apparently, both the public witnesses did not support the case of prosecution wholeheartedly and the aspect related to recovery particularly the place of recovery makes the story suspectful. Since some of the GC notes were found lying on the floor of the car, it cannot be assumed with complete certainty and precision that accused had actually accepted the bribe. Sh. Rao has contended that since recovery was from the car of the accused, it does not matter whether notes were in the dashboard or on the floor of the car. He has argued that, quite possibly, when complainant had demanded money from accused, accused obliged him and in the process, few notes might have fallen down. However, CBI should have come up with such story right from the inception. Things could have been different if CBI had itself come up with a story that few notes had fallen down on the floor of the car and then explaining the same as well, instead of concealing the actual facts. Place of CC No. 05/2016 CNR No. DLCT01-004642-2015 page 39 of 41 recovery of notes is quite incomprehensible herein. Witnesses have come up with different versions and it is not possible to read their testimony with complete harmony and in full synchronization. I also cannot be oblivious of the fact that both the material independent witnesses were declared hostile by the prosecution and in such a situation, the discrepancies on record cannot be said to be trivial.
13.9 Recovery of the amount was undoubtedly, as per the case of prosecution, from the car but such recovery has to be consequent to the acceptance. Mere recovery in isolation would not do any good. If I believe the contention of Sh. Rao, then even if the complainant had simply put the money in the dashboard without the knowledge of the accused and if such amount was eventually recovered by CBI, then it would also invite culpability which does not click to common sense.
13.10 Moreover, as noted above, there is a remote possibility that accused might have been trying to get the money for Anchal only and therefore, the application, written by Vipin, should have been placed on record to appreciate said aspect in right perspective. Alleged transcription also reflects that accused had even claimed that he would get another letter in writing from Aanchal to the effect that there was nothing due now from Vipin which too signifies that he wanted the money to eventually go to her only. Such likelihood cannot be eliminated altogether. Certainly, the manner and style can be labelled as wide of the mark but perhaps he was imprudently trying to ensure that Aanchal gets back her legitimate dues.
13.11 As an upshot of my foregoing discussion and considering the jerks and jolts, in the shape of disjointed evidence, I am compelled to give benefit of doubt to accused. Accused is, therefore, acquitted of all the charges.
CC No. 05/2016 CNR No. DLCT01-004642-2015 page 40 of 41 13.12 However, observations appearing in the judgment would not come in the
way of Departmental Proceedings, if any where the evaluation is on less stringent degree of preponderance of probabilities.
Announced in the open Court
on this 08th day of September 2017 (MANOJ JAIN)
Special Judge (PC Act) (CBI)-04
Central Distt: Tis Hazari Courts: Delhi
Digitally
signed by
MANOJ MANOJ JAIN
Date:
JAIN 2017.09.08
21:54:33
+0530
CC No. 05/2016 CNR No. DLCT01-004642-2015 page 41 of 41