Delhi District Court
Cbi vs . Lal Kishan @ Advani on 7 February, 2020
IN THE COURT OF MS. SANTOSH SNEHI MANN,
SPECIAL JUDGE (PC ACT): CBI08:
ROUSE AVENUE DISTRICT COURT: NEW DELHI
CC No. 07/14
CIS No. 221/2019
RC No. 20A/2014/ACB/CBI/ND
Central Bureau of Investigation
Versus
Lal Kishan @ Advani
S/o Late Sh. Mewa Ram
R/o H. No. A36, Gali No. 3, Mandoli Extension,
Bank Colony Road, Delhi.
Date of filing of complaint : 09.12.2014
Date of conclusion of final arguments : 25.01.2020
Date of announcement of judgment : 07.02.2020
JUDGMENT
1. Accused Lal Kishan @ Advani has been chargesheeted to face trial for committing the offences punishable under Section 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter "PC Act").
Background Facts
2. Complainant Pawan is in the dairy business who filed a complaint to SP, CBI, Delhi that accused Lal Kishan @ Advani, an employee of MCD, posted as a Cattle Catcher at Green Park, was pressurizing him to pay Rs. 9,000/ per CC No. 07/14 Page 1 of 45 CBI Vs. Lal Kishan @ Advani month as bribe or else his cows would be picked up.
3. The complaint was verified in the presence of an independent witness when conversation between the complainant and the accused were recorded, which allegedly confirmed the demand of bribe by the accused. Consequently, FIR was registered on 24.06.2014 vide RC No. 20(A)/2014/ACB, New Delhi.
4. On 24.06.2014, a trap was laid and accused Lal Kishan @ Advani was allegedly caught redhanded while demanding and accepting phenolphthalein powder treated currency notes amounting to Rs. 6,000/ as bribe from the complainant, in the presence of 02 independent witnesses. Accused was apprehended at the spot and the bribe money was recovered from him. His handwashes and pant pocket wash were taken. Conversations held between the accused and the complainant during trap proceedings were also recorded.
5. During investigation, sample voice of the accused was taken, transcript of the recorded conversations was prepared and voice of accused in the recorded conversation was identified by the complainant in the presence of independent witnesses. Handwashes and back side pant pocket wash of the accused were sent to CFSL for chemical examination and the report given by the expert confirmed presence of phenolphthalein in those washes. Specimen CC No. 07/14 Page 2 of 45 CBI Vs. Lal Kishan @ Advani voice of the accused along with questioned voices in the recorded conversations was sent to CFSL for forensic voice examination and the report of the voice expert confirmed the voice of accused in the recordings.
Charge
6. On the basis of material filed along with the chargesheet, prima facie offences punishable under Section 7 and Section 13(2) read with Section 13(1)(d) of the P.C. Act were made out against the accused. Charge was framed accordingly against the accused by the Ld. Predecessor on 18.03.2015. Accused pleaded not guilty and claimed trial. CBI was then directed to lead evidence.
Prosecution Evidence
7. CBI has examined 21 witnesses in all.
8. PW1 Sh. V. B. Ramteke, Sr. Scientific Officer, GradeI (Chemistry), CFSL had examined contents of the sealed bottles marked Ex. LHW (Ex. PW1/A) & Ex. RHW (Ex. PW1/B) containing left hand and right hand washes respectively of the accused and contents of the bottle marked Ex. BSPPW (Ex. PW1/C) containing back side pant pocket wash of the accused. He gave the report Ex. PW1/G (D13) that contents of all bottles gave positive test for presence of phenolphthalein.
9. PW2 Sh. D. N. Singh, former Additional CommissionerI, SDMC, New Delhi had granted sanction for prosecution of CC No. 07/14 Page 3 of 45 CBI Vs. Lal Kishan @ Advani accused Lal Kishan @ Advani vide Ex. PW2/A.
10. PW3 Sh. Anuj Bhatia, Nodal Officer, Vodafone Mobile Services Ltd. proved the original Customer Application Form pertaining to mobile No. 9873479192 in the name of the complainant Pawan S/o Rajpal as Ex. PW3/B, original Customer Application Form pertaining to mobile No. 9999031205 in the name of Devraj S/o Chajju Ram, allegedly used by the accused during verification and trap proceedings as Ex. PW3/C. He also proved the certified copies of call detail records of mobile Nos. 9873479192 and 9999031205 dated 24.06.2014 as Ex. PW3/D and Ex. PW 3/E respectively along with the certificates under Section 65B of Indian Evidence Act as Ex. PW3/F and Ex. PW3/G respectively.
11. PW 4 Dr. V. K. Singh, Deputy Director, Veterinary Services, SDMC has proved his letter dated 16.07.2014 (Ex. PW4/A) vide which he had handed over to the CBI various documents (Ex. PW4/A to Ex. PW4/G) pertaining to transfer, posting and duties of accused. He also proved the certified copy of record of action taken proceedings against the complainant Pawan S/o Rajpal for running an illegal dairy, as Ex. PW4/H and personal biodata of accused as Ex. PW4/J.
12. PW5 Sh. Pawan Chaudhary is the complainant.
13. PW6 Sh. Harender Pal Singh had accompanied the CC No. 07/14 Page 4 of 45 CBI Vs. Lal Kishan @ Advani complainant PW5 Pawan Chaudhary to CBI office where he had written the complaint Ex. PW5/A on the dictation of the complainant.
14. PW7 Sh. Dilraj is the person in whose name mobile No. 9999031205 was issued by Vodafone, which was allegedly used by the accused during verification and trap proceedings.
15. PW8 Sh. Vinod Kumar, PW9 Sh. Mohd. Amir and PW 12 Sh. Vikas Kumar were posted as Cattle Catchers in the Veterinary Department, South Zone, MCD from December 2010 to November 2014 and were colleagues of the accused in the said department. They are cited as witnesses of the fact that mobile No. 9999031205 was used by the accused during that period, but have not supported the prosecution on this fact.
16. PW10 Sh. Sandeep Kumar Chauhan was posted as LDC/Miltch Tax Inspector (MTI) in the Veterinary Services Department, South Zone, SDMC, Green Park, New Delhi from October 2010 to August 2014, who on the direction of Deputy Director, had conducted a survey in the area to book illegal dairies and had reported about an illegal dairy being run by Pawan (complainant), with respect to which on the direction of the superior authority, he had issued notice to Pawan (complaiant). This witness was part of the joint action taken by the MCD and police force in which 04 CC No. 07/14 Page 5 of 45 CBI Vs. Lal Kishan @ Advani cattle were impounded from the dairy of complainant Pawan. PW10 referred to the office order dated 18.01.2013 Ex. PW4/G (D12, Annexure F) about constitution of cattle catching teams and action taken report dated 17.01.2013 Ex. PW4/H [D12, Annexure G (colly)] in this regard.
17. PW11 Sh. Vipin Kumar Tiwari, chowkidar at MCD, Central Zone is cited as a witness of demand and acceptance of bribe by the accused in the trap proceedings, but has not supported the prosecution case.
18. PW13 Sh. Muneesh Kumar had joined the verification and trap proceedings on 24.06.2014 as an independent witness. He has deposed on the lines of prosecution case and identified his signatures on the verification memo Ex. PW5/E (D2); handing over memo Ex. PW5/H (D4); recovery memo Ex. PW5/L (D5); arrestcumpersonal search memo Ex. PW13/A (D6); and rough sketch map Ex. PW5/K (D7). Witness also identified micro SD cards Q1 (Ex. P11) and S1 (Ex. P10), handwashes sealed in bottles [Ex. PW1/B (RHW), Ex. PW1/A (LHW) & Ex. PW1/C (BSPPW)] and GC notes (Ex. PW1 to P9) used as trap money. He is also a witness of preparation of transcription of the recorded conversation (Ex. PW5/C) and identified his signatures on the identificationcum transcription memo (Ex. PW5/B). He produced the brass CC No. 07/14 Page 6 of 45 CBI Vs. Lal Kishan @ Advani CBI seal, Ex. P13 in the Court, which was used for sealing the articles/exhibits during trap proceedings.
19. PW14 Dr. Rajinder Singh is an expert witness who had examined the micro SD cards - Q1 & S1, received from CBI in sealed envelopes vide letter Ex. PW14/A (D9) and gave his report Ex. PW14/B (D14). He identified the micro SD cards Q1 (Ex. P11) and S1 (Ex. P10) produced in the sealed envelopes, Ex. PW5/M & Ex. PW13/D respectively, which were examined by him.
20. PW15 Dy. SP Ranvijay Singh had verified the complaint (Ex. PW5/A) on the instructions of SP Harendra Pal Singh. He had joined the independent witness Sh. Munesh Kumar (PW13) in the verification proceedings and deposed that conversations between the complainant and the accused were recorded which confirmed demand by the accused from the complainant and had prepared verification memo (Ex. PW5/E). It has come in his deposition that on the basis of verification carried out by him, FIR (Ex. PW5/F) was registered against the accused on the order of Mr. Nisith Mishra, SP, ACB, New Delhi and investigation was assigned to the then Inspector Kailash Sahu. PW15 is also a witness of the trap proceedings being member of the trap team constituted by the then Inspector Kailash Sahu (PW
16).
21. PW16 Dy. SP Kailash Sahu is the trap laying officer CC No. 07/14 Page 7 of 45 CBI Vs. Lal Kishan @ Advani (T.L.O.), who was assigned the investigation of the case after registration of the FIR/R.C. He had constituted the trap team including two independent witnesses - Sh. Munesh Kumar (PW13) & Sh. Raghubir Singh (PW17). During pretrap proceedings, numbers of the GC notes to be used as trap money were noted down on a separate sheet (Ex. PW5/G); they were treated with phenolphthalein powder in the presence of trap team members; reaction of phenolphthalein powder with the sodium carbonate solution was demonstrated and thereafter, phenolphthalein treated G.C. notes were handed over to the complainant with instruction to give them to the accused on his specific demand. PW16 prepared a memo of the proceedings vide handing over memo Ex. PW5/H.
22. PW16 deposed that accused was apprehended at the spot after he received bribe money from the complainant; hand washes of the accused were taken and were sealed in bottles; the trap money was recovered from the accused and seized and the rough site plan (Ex. PW5/K) of the spot was prepared.
23. PW16 further testified that trap team returned to the CBI office taking along the accused where his pant pocket wash was taken and sealed in a bottle; accused was formally arrested vide arrestcumpersonal search memo (Ex. PW 13/A); recorded conversations between the accused and CC No. 07/14 Page 8 of 45 CBI Vs. Lal Kishan @ Advani complainant during trap proceedings were heard and a copy was prepared for investigation purposes; the micro SD card was sealed and marked as Q1 and sample voice of the accused was taken in a new micro SD marked S1, which was also sealed. PW16 identified both the micro SD cards Q1 (Ex. P11) and S1 (Ex. P10) during his deposition; the sealed bottles containing washes [Ex. PW1/B (RHW), Ex. PW1/A (LHW) & Ex. PW1/C (BSPPW)]; 03 white cloth wrappers (Ex. PW1/D, Ex. PW1/E & Ex. PW1/E) which he had used for sealing the glass bottles LHW, RHW & BSPPW respectively and the GC notes used as trap money as Ex. P1 to P9.
24. PW17 Sh. Raghubir Singh is an independent witness who had joined the trap proceedings as an independent witness on 24.06.2014. He has deposed on the lines of prosecution story about the trap proceedings and identified his signatures on the handing over memo (Ex. PW5/H) along with its annexure (Ex. PW5/G); recovery memo Ex. PW5/L (D5); arrestcumpersonal search memo Ex. PW 13/A (D6); and rough sketch map Ex. PW5/K (D7). Witness also identified micro SD cards Q1 (Ex. P11) and S1 (Ex. P10), handwashes sealed in bottles [Ex. PW1/B (RHW), Ex. PW1/A (LHW) & Ex. PW1/C (BSPPW)] and GC notes (Ex. PW1 to P9) used as trap money. He is also a witness of preparation of transcription of the recorded CC No. 07/14 Page 9 of 45 CBI Vs. Lal Kishan @ Advani conversation (Ex. PW5/C) and identified his signatures on the identificationcumtranscription memo (Ex. PW5/B).
25. PW18 Dy SP Alok Kumar Singh was assigned investigation of this case by SP Vivek Priyadarshi, after the trap. He deposed that during investigation he recorded statements of the witnesses and had forwarded the exhibits to CFSL for expert opinion; had prepared the transcription of the recorded conversation (Ex. PW5/C) in the presence of independent witnesses vide transcriptioncumvoice identification memo Ex. PW5/B; and had collected documents with respect to posting of the accused from the office of Veterinary Officer, MCD, Green Park and action of MCD against illegal dairies (Ex. PW4/B to Ex. PW4/J) vide letter of Deputy Director, SDMC (Ex. PW4/A).
26. During investigation, PW18 had collected and seized CAF and CDRs of mobile phone numbers used by the accused and complainant vide memo Ex. PW3/A; had received the chemical expert report (Ex. PW1/G) and voice expert report (Ex. PW14/B). He obtained sanction order (Ex. PW2/A) to prosecute the accused and filed the charge sheet after completion of investigation.
27. PW19 Dr. Subrat Kumar, Sr. Scientific Officer GradeII (Physics) had prepared a CD of copy of data in micro SD card Q1, which was sent to CFSL for retrieval of data by the order of this Court and gave his report Ex. PW19/B. CC No. 07/14 Page 10 of 45 CBI Vs. Lal Kishan @ Advani Witness identified the CD (Ex. PW19/H) and proved his certificate under Section 65B of Indian Evidence Act (Ex. PW19/F). It has come in his deposition that data in micro SD card Q1 was lying in a hidden folder.
28. PW20 Sh. A. D. Tiwari, Principal Scientific Officer, CFSL had prepared a copy of data in micro SD card S1, which was sent to CFSL for retrieval of data by the order of this Court and for preparation of copies of the retrieved data. Witness deposed that the micro SD card S1 did not play in the system and therefore he had sent it to the Computer Forensic Division at CFSL vide internal forwarding letter (Ex. PW20/B). On the basis of the retrieved data received by him from the Computer Forensic Unit along with the report Ex. PW20/D, he gave his report Ex. PW20/C.
29. PW21 Sh. R. K. Srivastava, Principal Scientific Officer, CFSL had received the micro SD card S1 from the Photo & Scientific Aids Division of CFSL vide internal forwarding note (Ex. PW20/B) for retrieval of files and had retrieved 08 files from the micro SD card, which were provided in 03 CDs to the Photo & Scientific Aids Division along with the report (Ex. PW20/D). Witness identified the micro SD card S1 (Ex. P10) and the copy of its contents in a CD (Ex. PW21/C) along with his certificate under Section 65B Indian Evidence Act (Ex. PW21/E).
CC No. 07/14 Page 11 of 45CBI Vs. Lal Kishan @ Advani Statement of accused
30. After conclusion of prosecution evidence, entire incriminating evidence was put to the accused and his statement under Section 313 CrPC was recorded without oath. He denied the incriminating evidence against him and claimed to be falsely implicated by the complainant.
31. I have heard Sh. M. Saraswat, Public Prosecutor for CBI and Advocate Sanjeev Bharadwaj, counsel for accused Lal Kishan @ Advani. I have perused the evidence brought on record.
Sanction for Prosecution
32. Mandate of the law under Section 19 PC Act is that no Court shall take cognizance of an offence specified in the section against a public servant without previous sanction of the competent authority.
33. PW2 Dr. D. N. Singh has testified that being posted as Additional CommissionerI, South Delhi Municipal Corporation, he was competent to remove the accused from services and that on the basis of documents and record given by the CBI/ACB, New Delhi, he had granted sanction to prosecute the accused vide Ex. PW2/A.
34. Though competence of PW2 to grant sanction for prosecution of accused Lal Kishan @ Advani is not disputed by the defence, the sanction order (Ex. PW2/A) is assailed on its validity on the ground that it was passed CC No. 07/14 Page 12 of 45 CBI Vs. Lal Kishan @ Advani mechanically by PW2 without application of mind by simply replicating the draft sanction order submitted by CBI.
35. Ld. PP for CBI argued that sanction for prosecution was granted by PW2 after due application of mind on the basis of documents and record submitted by CBI.
36. It has come in the crossexamination of PW2 by the Ld. Denfence counsel that he had gone through the CBI report, FIR, voice expert report and chemical expert report before granting sanction. It has also come in the crossexamination of PW2 that he had also heard the voice recordings before giving sanction. In respect to a specific question by the defence counsel, PW2 deposed that he had not received any draft of sanction order from the CBI and that after going through the records of CBI, he had given dictation to the stenographer who had typed the draft, which he had corrected and then finalized.
37. It has been demonstrated by the Ld. Defence counsel in the crossexamination that a draft sanction order (Ex. PW 2/DX1) was received in the office of PW2 along with the request letter of CBI (Ex. PW2/DX) seeking sanction. However, PW2 reiterated that he had given dictation for the sanction order and after making corrections in the draft, he had signed the final sanction order Ex. PW2/A. The corrected draft sanction order is Ex. PW2/B. PW2 denied CC No. 07/14 Page 13 of 45 CBI Vs. Lal Kishan @ Advani the suggestion that he had merely signed the draft sanction order sent by CBI without application of mind or that he did not peruse any document for granting sanction to prosecute the accused.
38. Interpretation and application of Section 19 of PC Act was considered by the Apex Court in State of Karnataka Vs. Ameerjan, (2007) 11 SCC 273, and it was held:
................................................................................ ................................................................................
9. We agree that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not.
............................................................................... ................................................................................
(emphasis supplied)
39. In C.S. Krishnamurthy Vs. State of Karnataka, (2005) 4 SCC 81, with respect to the obligation on the sanctioning authority for exercise of power to grant sanction for prosecution, it was held:
7. This sanction order was proved by Mr V. Parthasarthy, Deputy General Manager of Bangalore Telecom as PW 40, he was competent authority to accord sanction and he accorded the sanction for prosecution of the accused for the alleged offence on 2821990 as per Ext. P83. He deposed that SP, CBI sent a report against the accused and he perused the report and accorded the sanction as per Ext. P83.
He deposed that he was satisfied that there was a case for prosecuting the accused for the alleged CC No. 07/14 Page 14 of 45 CBI Vs. Lal Kishan @ Advani offence. He admitted that he received a draft sanction order and a draft sanction order was also examined by the Vigilance Cell and then it was put up before him. He also deposed that before according sanction he discussed the matter with the Vigilance Cell. He also admitted that he was not a law man, therefore, he discussed the legal implication with a legally qualified officer in the Vigilance Cell. He has denied the suggestion that he did not apply his mind in according sanction. It is no doubt true that sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecution against public servant (sic) from harassment. But, the sanction should not be taken as a shield to protect corrupt and dishonest public servant..................................................................... ............................................................................... ............................................................................... ............................................................................... When sanction order itself is eloquent enough, then in that case only formal evidence has to be produced by the sanctioning authority or by any other evidence that the sanction was accorded by a competent person with due application of mind.
8.............................................................................. ............................................................................... ...............................................................................
9. Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order........................................................................ ...............................................................................
(emphasis supplied)
40. The settled legal position therefore is that there is no prescribed format or template of the sanction order. The sanctioning authority is under the obligation to take the call on grant or refusal of sanction for prosecution, considering CC No. 07/14 Page 15 of 45 CBI Vs. Lal Kishan @ Advani the overall facts and circumstances of the matter. Further the safeguard to a public servant for prior sanction for his prosecution cannot be allowed to be used as a shield to protect corrupt and dishonest public servants. Hon'ble Supreme Court in C. S. Krishnamurthy(supra) held a speaking sanction order passed by the competent authority to be valid even when a draft sanction order was received by the competent authority along with the report of SP. Therefore, just because draft sanction order was received by PW2 from CBI will not make the sanction order invalid.
41. It has come very specifically in the crossexamination of PW2 that before granting sanction for prosecution of the accused, he had examined and gone through the material/record of CBI including the CBI report, FIR, voice expert report, chemical expert report and had also heard the recordings. Nothing has come in the crossexamination to shake the testimony of the witness on this fact. The sanction order Ex. PW2/A is in detail and exhaustive which gives the gist of complaint of bribe against the accused, verification and trap proceedings including the fact that accused was caught redhanded while demanding and accepting bribe. The report also mentions about hand washes and pant pocket wash of the accused confirming presence of phenolphthalein and the expert opinion about the chemical washes and the voice examination.
CC No. 07/14 Page 16 of 45CBI Vs. Lal Kishan @ Advani
42. In view of the testimony of PW2, above observation and the settled legal position, it is held that there is a valid sanction to prosecute the accused in this case. Demand and Acceptance of Illegal Gratification
43. It is the case of the prosecution that accused Lal Kishan @ Advani, a Cattle Catcher with MCD, South Zone, Green Park, had demanded Rs. 9,000/ per month as bribe from the complainant Sh. Pawan Kumar (PW5) for allowing him to continue his dairy business in the area or else his cattle would be picked up. In pursuance to this demand, accused allegedly accepted Rs. 6,000/ from the complainant during trap proceedings on 24.06.2014. To prove the demand and acceptance of bribe by the complainant (PW5), prosecution has relied on the oral testimony of complainant Sh. Pawan Kumar (PW5), independent witnesses Sh. Muneesh Kumar (PW13) & Sh. Raghubir Singh (PW17) and testimony of CBI officials, i.e., verifying officer Dy. SP Ranvijay Singh (PW15), trap laying officer Dy. SP Kailash Sahu (PW16) and electronic evidence of the recorded conversation between the complainant and the accused.
44. Ld. PP for CBI argued that complaint (Ex. PW5/A) is specific about demand and motive, which has been proved in the verification proceedings by the oral testimony of the witnesses and the recorded conversation between the complainant and the accused. It was argued that though the CC No. 07/14 Page 17 of 45 CBI Vs. Lal Kishan @ Advani complainant (PW5) has turned hostile and did not support the prosecution case about demand and acceptance of bribe by the accused from him, his testimony is specific that demand of bribe was made by the MCD officials and further that testimony of the independent witnesses (PW13 & PW
17) and the transcript of the recorded conversation (Ex. PW5/C) prove the prosecution case. It was argued that accused had met the complainant at the designated/decided spot where he demanded and received the bribe from the complainant in the presence of independent witnesses Sh. Muneesh Kumar (PW13) & Sh. Raghubir Singh (PW17). Ld. PP for CBI argued that accused was caught redhanded with the bribe amount in the presence of independent witnesses.
45. Ld. Defence counsel has assailed the prosecution evidence arguing interalia - that complainant has not supported the prosecution case on material facts; that independent witness Sh. Muneesh Kumar (PW13) has deposed that he did not hear any demand during the verification proceedings or at the spot during the trap proceedings; that the alleged demand contained in the micro SD card Q1 (Ex. P11) has not been proved; that the recordings in the micro SD cards Q1 (Ex. P11) & S1 (Ex. P10) are fabricated which did not play in the Court; that report of voice expert Dr. Rajinder Singh (PW14) has been given in CC No. 07/14 Page 18 of 45 CBI Vs. Lal Kishan @ Advani mechanical manner; that acceptance of bribe amount has not been proved beyond reasonable doubts and there are major contradictions in the testimony of material witnesses in this regard; that the phenolphthalein washes are planted and documents are fabricated; that accused and the complainant never used the mobile phones allegedly used by them as per the prosecution case; and lastely that the bribe money was planted to falsely implicate the accused.
46. Ld. Defence counsel has relied upon the following judgments:
1. N. Sunkanna Vs. State of Andhra Pradesh, 2015 SCC OnLine SC 950;
2. Selvaraj Vs. State of Karnataka, 2015 SCC OnLine SC 831;
3. State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede, (2009) 15 SCC 200;
4. Parmanand Vs. CBI, 2013 SCC OnLine Del 2394;
5. State of Rajasthan Vs. Mohan Lal, (2009) 12 SCC 515;
6. Mukhtiar Singh Vs. State of Punjab, 2017 SCC OnLine SC 742;
7. C. Sukumaran Vs. State of Kerala, 2015 SCC OnLine SC 78;
8. Sunil Kumar Sharma Vs. State (CBI), 2007 SCC OnLine Del 520;
9. B. Jayaraj Vs. State of A.P., 2014 SCC OnLine SC 268;CC No. 07/14 Page 19 of 45
CBI Vs. Lal Kishan @ Advani
10. P. Satyanarayana Murthy Vs. The District Inspector of Police & Anr., 2015 SCC OnLine SC 814;
11. Karnail Singh Vs. State of Punjab, 2008 SCC OnLine P&H 912;
12. Suresh Kumar Vs. State of Haryana, 2008 SCC OnLine P&H 914;
13. Ronald Kiprono Ramkat Vs. State of Haryana,(2001) 6 SCC 423;
14. Dr. S. L. Goswami Vs. State of Madhya Pradesh, (1972) 3 SCC 22; and
15. State Vs. K. Narsimhachari, (2005) 8 SCC 364.
Substantive Law and Case Law
47. Before proceedings to analyze the testimony of the complainant Sh. Pawan Kumar (PW5) and other evidence in the light of arguments put forth, it is deemed necessary to refer to the basic substantive law under Section 7 & 13 of PC Act. Taking illegal gratification/bribe by a public servant is an offence under Section 7 & 13 of PC Act. Relevant portions of sections are reproduced as under:
7. Public servant taking gratification other than legal remuneration in respect of an official act. -
Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official CC No. 07/14 Page 20 of 45 CBI Vs. Lal Kishan @ Advani functions favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years] and shall also be liable to fine. Explanation - (a) ...............
(b) ................
(c) ................
(d) ...............
(e) ...............
13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct, -
(a)...............
(b)...............
(c).............
(d) if he, -
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e)..............
Explanation - .......................... (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four years] but which may extend to [ten years] and shall also be liable to fine.
(emphasis supplied) CC No. 07/14 Page 21 of 45 CBI Vs. Lal Kishan @ Advani
48. In B. Jayaraj (supra), it was held that mere possession and recovery of currency notes is not sufficient to constitute the offence u/s 7 and 13(1)(d)(i) & (ii) of PC Act. Relevant para is as under:
8..............................................................................
................................................................................ Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.
(emphasis supplied)
49. In P. Satyanarayana Murthy (supra), ratio of the decision in B. Jayaraj (supra) was reiterated that mere possession of currency notes without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d)(i) & (ii) of PC Act. The relevant para is as under:
23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under CC No. 07/14 Page 22 of 45 CBI Vs. Lal Kishan @ Advani Section 7 or 13 of the Act would not entail his conviction thereunder.
(emphasis supplied)
50. In Mukhtiar Singh (supra), the Apex Court while taking note of its previous decisions in B. Jayaraj (supra) & P. Satyanarayana (supra), held that proof of demand of illegal gratification is the gravamen of offence u/s 7 and 13 (1)(d)(i) & (ii) of PC Act and failure of prosecution to prove demand for illegal gratification would be fatal as mere recovery of amount from the accused would not entail his conviction.
51. In A. Subair Vs. State of Kerala, (2009) 6 SCC 587 it was held that for bringing home the charge under Section 7 and 13(2) read with 13(1)(d) of PC Act, 02 essential components to be proved by the prosecution are - the demand and acceptance of bribe.
52. The ratio of above judgments has been reiterated in N. Sunkanna (supra), Selvaraj (supra), Dnyaneshwar Laxman Rao Wankhede (supra), Mohan Lal (supra), Mukhtiar Singh (supra) and C. Sukumaran (supra).
53. In Parmanand (supra), it was held that when there is material contradiction in the testimony of the sole witness of demand, the demand at the time of raid is not proved beyond reasonable doubt.
54. In Sunil Kumar Sharma (supra), it was held that unless demand of acceptance of bribe by the accused is not proved CC No. 07/14 Page 23 of 45 CBI Vs. Lal Kishan @ Advani by the prosecution beyond reasonable doubt, presumption under Section 20 of PC Act cannot be drawn.
55. Ronal Kiprono Ramkat (supra), Dr. S. L. Goswami (supra) and K. Narsimhachari (supra) refer to general principles of criminal law that - initial onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt; the standard of proof to prove the defence is not same as is required to prove the prosecution case; and that when 02 views are possible, the view which is in favour of accused shall prevail.
56. Karnail Singh (supra) and Suresh Kumar (supra) are the decisions of Punjab and Haryana High Court under the PC Act. In view of the settled legal position as discussed by way of various Apex Court decisions, discussion of these judgments is not required.
Analysis of Evidence
57. Complainant Pawan Kumar (PW5) is the star witness, who has been crossexamined at length by Sr. PP for CBI since he did not support the prosecution case on material facts. Therefore in order to analyze and appreciate his testimony, it is deemed necessary to refer to relevant portions of his deposition, which are reproduced as under:
PW5 Pawan Kumar [Deposition dated 02.07.2015 (examination inchief)] ............................................................................................................. ..............................................................................................................
Today, I do not recollect the date, month but it was Asad in the last year 2014 when I reached my house after supplying/selling the milk CC No. 07/14 Page 24 of 45 CBI Vs. Lal Kishan @ Advani at different places i.e. kothis and buildings at about 5 or 5.30 p.m. At that time, I found some MCD officials present at my residence and the officers names are Pawan, Vinod, Amir, Amarjeet again said these persons did not meet me but they met my servant Harender. Sh. Harender told me that MCD people came to my house and threatened that if I will not give them money, they will lift my buffaloes and cows from my dairy. Thereafter, I went to Saket Court and met one lawyer and got typed my complaint addressing the same to some MCD official. I gave the said complaint to Officer of Crime Branch situated under the Barapula bridge and the officer assured me that they will make an enquiry about my complaint. They also directed me to come to the said office, the next day. Thereafter, I again went to the said office, next day at about 4/4.30 p.m. ............................................................................ ............................................................................................................ ..........................................................In the said office, in the presence of group members, the head of the group brought some powder there and the said powder was poured on the hands of one group member and then the said officer was directed to put his hand in a glass of water and the water in the glass changed into pink colour. The said pink water was kept in 34 small bottles. Then the officer of the said officer asked me as to whether I had brought some money to which I replied that I have not brought any money. Thereafter, the said officer who were from the CBI talked to each other and they left their office for Green Park. At this stage, it is submitted by Ld. Sr. PP for CBI that the witness is resiling from his previous statement and he is the complainant in this case and the present case was registered on his complaint but he is not stating as per his complaint, so, he wants to cross examine him. He may kindly be allowed. Heard. Allowed.
XXXXX By Sh. S. C. Sharma, Ld. Sr. PP for CBI.
.............................................................................................................. .............................................................................................................. ...............................................................It is correct that I went to the CBI office on 24.06.2014 alongwith Harinder Pal Singh. It is correct that I got written my complaint through Harinder Pal Singh in Hindi Language and then I signed the same. Volunteered : Today, I do not recollect where I got written the same from Harinder Pal Singh. .......... ............................................................................................................. .............................................................................................................. PW5 Pawan Kumar (Deposition dated 07.08.2015) XXXXX By Sh. S. C. Sharma, Ld. Sr. PP for CBI.
.............................................................................................................. ..............................................................................................................CC No. 07/14 Page 25 of 45
CBI Vs. Lal Kishan @ Advani .......................... It is wrong to suggest that the accused present in the court namely Lal Kishan @ Advani is the same person who demand a sum of Rs.9000/ from me. Vol. the money was demanded from me by Pawan, Vinod, Amir and Baljeet.
.............................................................................................................. .............................................................................................................. ............................................................................................. I saw the accused present in the court namely Lal Kishan @ Advani as and when Pawan, Vinod, Amir and Baljeet came to lift my cows and buffaloes from my dairy. ............................................................................................. ............................................................................................................ It is wrong to suggest that I have stated to CBI in my statement recorded u/s 161 Cr.P.C on 17.07.2014 that "an officer namely Lal Kishan @ Advani of MCD, Green Park was pressurizing me to pay Rs.9000/ p.m. as bribe. ............................................................................................... ............................................................................................................ ........................................................................It is wrong to suggest that a DVR was arranged from CBI office to record the likely conversation between me and the suspect officer i.e. Lal Kishan @ Advani. It is wrong to suggest that I had stated to CBI in my statement that a DVR make Sony was arranged from CBI office to record likely conversation between me and Lal Kishan @ Advani. ............................. ............................................................................................................. It is correct that my mobile number was 9873479192. It is correct that at about 2.53 p.m, I made a call from my mobile number 9873479192 to mobile number 9999031205. Today, I do not remember whether the aforesaid call was materialized or not. It is correct that after disconnection of the call, I received a call on my mobile phone no. 9873479192 from mobile no. 9999031205. It is correct that my phone was put on loud speaker mode to overhear the said call. Thereafter, a conversation took place between me and the caller, who called me from the mobile no. 9999031205. Today, I do not know whether the said call was recorded simultaneously in the DVR. .............................................. ............................................................................................................. ..................................Volunteered : I had produced the GC notes in the denomination of Rs.100/ and Rs.50/. Today, I do not remember the total number of GC notes of Rs. 100/ in denomination and total numbers of GC notes of Rs.50/ in denomination. This amount was given by me to the CBI to give the bribe to Vinod, Amir, Pawan and Amarjeet. .............................................................................................. ............................................................................................................. ........................................................................... Thereafter we moved towards AIIMS after crossing the road and reached near Dy. Commissioner's Officer, MCD where 78 MCD employees met us namely, CC No. 07/14 Page 26 of 45 CBI Vs. Lal Kishan @ Advani Vinod, Amir, Baljeet, Pawan etc., and the remaining names, I do not recollect today. It is wrong to suggest that there I met Lal Kishan @ Advani cattle catcher, MCD, Veterinary Deptt. Green Park, New Delhi and started talking to him. .................................................................. ............................................................................................................. ............................. I do not know any person by the name of Vipin Kumar Tiwari, Chowkidar of MCD office. It is further wrong to suggest that when I was talking to accused Lal Kishan @ Advani at that time, chowkidar Vipin Kr Tiwari had also come over there. ............................ .............................................................................................................. .................................................................................................. It is correct that trap members of CBI rushed towards the me. Volunteered they apprehended 78 people. I also told about apprehension of 78 people in my statement dated 17.07.2014. ............................................ .............................................................................................................
PW5 Pawan Kumar (Deposition dated 07.03.2017) XXXXX By Sh. Sanjeev Bhardwaj, Adv. for accused.
I had given a typed complaint in which the names of Amir, Vinod, Amarjeet, etc. were written, at CBI office and the same was given to Insp. Kailash Sahu. My servant Harinder had told me that Amir, Vinod, Amarjeet and Pawan, etc. were demanding money. I had given the typed complaint in the same office, where I had visited on 24.06.2014. I had visited CBI office for the first time on 23.06.2014.
Accused Lal Kishan Adwani, present in the court, had never demanded any bribe from me nor I had given him any bribe nor any bribe amount was recovered from him in my presence. I had never talked with accused on telephone or personally.
The pink colour solution contained in 34 bottles, which was shown to the team including me at the time of demonstration, was also taken by the CBI team with them at the time of raid. .............................................................................................................. .............................................................................................................. .................................................The CBI team had parked the vehicles across the road in front of the AIIMS, near Petrol Pump. 78 persons were found present i.e. Cattle Catcher officials of the MCD in front of the AIIMS. I did not go to meet any of the Cattle Catcher. I remained seated in the vehicle of the CBI and even did not come down from the vehicle. The CBI officials had gone towards the Cattle Catcher officials with Harinder.
I was directed to go to my house from AIIMS by the CBI team for arranging the money. I again reached at the office of CBI at about 08:00 p.m. 09:00 p.m. and handed over the money arranged by me to CC No. 07/14 Page 27 of 45 CBI Vs. Lal Kishan @ Advani Insp. Kailash Sahu.
Accused present in the Court today had never threatened me that he will get picked up my cows and buffaloes, if I will not pay the demanded money. ................................................................................. .............................................................................................................
I had gone to the office of CBI on 25.06.2014, at about 04:00 - 04:40 p.m. at the call of Insp. Kailash Sahu. I was asked to sign certain documents and I signed.
.............................................................................................................. ......................................................... The witness states that these are the same documents, which he was asked to sign on 25.06.2014 and the said documents were not prepared in my presence, but were already prepared. .............................................................................................. .............................................................................................................
My servant Harinder was using mobile no. 9873479192 and the same is with CBI official, which was taken by them. ............................................................................................................ ............................................................................................................
58. As per the prosecution case, after receiving written complaint (Ex. PW5/A) of the complainant Sh. Pawan Kumar (PW5), demand of bribe alleged in the complaint was verified by PW15 Dy. SP. Ranvijay Singh in the presence of an independent witness Sh. Muneesh Kumar Sharma (PW13). It has come in the deposition of PW15 that after the written complaint of PW5 was assigned to him for verification, he had asked the complainant (PW5) to make a call from his mobile phone on the mobile phone of the accused, which did not materialize. However, after sometime a call was received from the mobile phone of accused on the mobile phone of the complainant, which was simultaneously recorded in a micro SD card through DVR, in which demand of Rs. 6,000/ was revealed.
CC No. 07/14 Page 28 of 45CBI Vs. Lal Kishan @ Advani Independent witness Sh. Muneesh Kumar (PW13) has also deposed on the same line that a call was received by the complainant on his mobile phone kept on speaker mode.
59. However, complainant Sh. Pawan Kumar (PW5) has not supported the prosecution case on this aspect. While he remained silent on this fact in his examinationinchief, in his crossexamination by the Ld. Sr. PP, he denied that any such demand was made from him by the accused. Not only he totally disowned his handwritten complaint (Ex. PW 5/A), he came up with a new story in the crossexamination that he got prepared a typed complaint from a lawyer which he had given to CBI, when his servant Harender told him that MCD officials had visited his house and had threatened that his cattle would be lifted if they were not paid the bribe.
60. As per the verification memo (Ex. PW5/E), complainant (PW5) had received a call on his mobile No. 9873479192 from the mobile No. 9999031205, allegedly used by the accused. The said conversation was heard by PW15 & PW 13, since mobile phone of complainant was on speaker mode. Prosecution is able to prove that the mobile phone No. 9873479192 was allotted in the name of complainant through PW3 Sh. Anuj Bhatia, Nodal Officer, Vodafone Mobile Service Limited, who also proved the CAF (Ex. PW 3/B) in this regard. However, it has also come in the CC No. 07/14 Page 29 of 45 CBI Vs. Lal Kishan @ Advani deposition of this witness that mobile phone No. 9999031205 was issued in the name of one Devraj and proved original CAF (Ex. PW3/C) in this regard. PW3 has also proved the CDR of mobile phone numbers 9873479192 & 9999031205 dated 24.06.2014 as Ex. PW3/D & Ex. PW 3/E duly supported by his certificate under Section 65B of Indian Evidence Act as Ex. PW3/F & Ex. PW3/G respectively. It is established by the deposition of PW3 that users of mobile No. 9873479192 and mobile No. 9999031205 had conversation with each other on 24.06.2014 during the time when the verification proceedings were carried out.
61. Though in the crossexamination of PW5 by Sr. PP for CBI at one point of time (deposition dated 07.08.2015, page
06), he has admitted that he was using the mobile phone No. 9873479192 and had received a call from the mobile phone No. 9999031205 allegedly used by the accused, but he took a somersault in his crossexamination by the defence counsel and stated that the said mobile number was used by his servant Harinder. It has also come in the crossexamination of PW5 that accused had never demanded any bribe from him and he never talked to the accused on telephone or personally.
62. With respect to the mobile phone No. 9999031205 allegedly used by the accused, PW7 Sh. Dilraj in whose CC No. 07/14 Page 30 of 45 CBI Vs. Lal Kishan @ Advani name this number was issued, has not supported the prosecution case and has deposed that he had handed over this particular SIM to one Bubble, brother of the complainant Pawan. In order to prove the fact that mobile No. 9999031205 was used by the accused, prosecution has examined 03 witnesses - PW8 Sh. Vinod Kumar, PW9 Sh. Mohd. Amir and PW12 Sh. Vikas Kumar, all posted as Cattle Catchers in the Veterinary Department, South Zone, MCD, but none of them has supported the prosecution case and have turned hostile. Therefore, the evidence brought on record by the prosecution has failed to establish that the mobile phone No. 9999031205 was used by the accused.
63. It has come in the deposition of Trap Laying Officer Dy. SP Kailash Sahu (PW16) that when the trap team along with complainant Sh. Pawan Kumar (PW5) and 02 independent witnesses - PW13 Sh. Muneesh Kumar and PW17 Sh. Raghubir Singh, was on the way to the spot at Green Park, complainant received a call on his mobile phone from the accused and the said conversation as recorded in the DVR. PW16 deposed that in the said conversation, accused asked the complainant to come immediately to the designated spot at Green Park. But complainant (PW5) has not deposed on these lines and has turned hostile. Though independent witnesses PW13 & PW17 have deposed on the line of TLO (PW16), that is of no use for the CC No. 07/14 Page 31 of 45 CBI Vs. Lal Kishan @ Advani prosecution case because prosecution has failed to prove that mobile phone No. 9999031205, from which the alleged call was received, was being used by the accused.
64. As per the prosecution, the demand of bribe was also made by the accused from the complaint at the spot immediately before receiving the bribe money. It has come in the deposition of TLO (PW16) that when the trap team reached near AIIMS, complainant informed him that accused would not accept the bribe in the presence of other persons and so it was decided to send the complainant in an auto. While the complainant went alone in the auto, the trap team followed him keeping a safe distance. It has further come in the deposition of PW16 that after reaching at the petrol pump at Green Park, complainant got down from the auto and went to the other side of the road, while the trap team also followed him and took position at a safe distance.
65. It has further come in the deposition of PW16 that after about 0507 minutes, complainant was seen meeting the accused on the roadside and they both engaged in a conversation. After some time, a third person joined them, who was later on identified as Sh. Vipin Kumar Tiwari (PW
11). All 03 were seen talking and having snacks while standing on the roadside. It is the case of the prosecution that conversation between the accused and the complainant CC No. 07/14 Page 32 of 45 CBI Vs. Lal Kishan @ Advani at that time was simultaneously recorded in the DVR carried by the complainant, which confirmed demand of bribe by the accused from the complainant.
66. Complainant (PW5) in his deposition has not supported the prosecution case on the above facts and has remained totally elusive and hostile to the extent that he has even denied meeting the accused at the designated spot. PW11 Sh. Vipin Kumar Tiwari, a chance witness, though has deposed that at the given time and place he had met the accused who was talking to a person (complainant), but deposed that he is not aware about the subject regarding which they were talking. Since he did not support the prosecution case about the context of the conversation between the accused and complainant in his presence, he was crossexamined by the Sr. PP for CBI and was confronted with his statement under Section 161 CrPC. He denied the suggestion that accused and the complainant were talking about money and cattle catching.
67. Independent witness Sh. Muneesh Kumar (PW13) had followed the complainant as a shadow witness and has deposed that the complainant was seen talking to the accused when one more person (PW11 Sh. Vipin Kumar Tiwari) joined them, but did not overhear the conversation as he was standing at a distance.
68. Therefore since the complainant (PW5) and the chance CC No. 07/14 Page 33 of 45 CBI Vs. Lal Kishan @ Advani witness Sh. Vipin Kumar Tiwari (PW11) did not support the prosecution case about context of the conversation, the only other piece of evidence about demand of bribe is the recorded conversation between the accused and the complainant.
69. In Ram Singh Vs. Col. Ram Singh, AIR 1986 SC 3, the Apex Court has laid down the conditions for deciding credibility and admissibility of tape recorded statement. Relevant para is as under:
32. Thus, so far as this Court is concerned the conditions for admissibility of a taperecorded statement may be stated as follows:
"(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the taperecorded statement has to be proved by the maker of the record by satisfactory evidence -- direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of a taperecorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.CC No. 07/14 Page 34 of 45
CBI Vs. Lal Kishan @ Advani (6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
(emphasis supplied)
70. In "Mahabir Prasad Verma V. Dr. Surinder Kaur, (1982) 2 SCC 258", it was held by the Apex Court that tape recorded evidence can only be used for corroboration, as under:
22. ..........................................................................
.............................Taperecorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the taperecorded conversation is indeed no proper evidence and cannot be relied upon. In the instant case, there was no evidence of any such conversation between the tenant and the husband of the landlady; and in the absence of any such conversation, the taperecorded conversation could be no proper evidence...................................... ............................................................................... ................................................................................
(emphasis supplied)
71. In "Nilesh Dinkar Paradkar Vs. State of Maharashtra, (2011) 4 Supreme Court Cases 143", the Apex Court has dealt with the evidence of voice identification, its proof and reliability. Relevant para is:
31. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the courts have to be extremely cautious in basing a conviction CC No. 07/14 Page 35 of 45 CBI Vs. Lal Kishan @ Advani purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification.
(emphasis supplied)
72. With respect to the recorded conversation, TLO (PW16) has deposed that the DVR and the micro SD card used during verification proceedings was also used by him to record the conversation between the accused and complainant during trap proceedings and that before the complainant proceeded alone in an auto to meet the accused at the designated spot, the said DVR containing the micro SD card was put in the shirt pocket of the complainant in the switchon mode. It has further come in the deposition of PW16 that after apprehension of the accused, the DVR was switchedoff and taken from the complainant and DVR was played in the presence of all when the team returned to CBI office along with accused.
73. PW16 further deposed that the micro SD card was taken out from the DVR and was sealed in an envelope after putting it in its original cover which was marked as Q1. In the presence of independent witnesses, he took the sample voice of the accused in a new 04 GB micro SD card which was also sealed in an envelope and was marked as S1. Before sealing the micro SD cards Q1 & S1, their copies were prepared through official laptop for investigation CC No. 07/14 Page 36 of 45 CBI Vs. Lal Kishan @ Advani purposes. PW16 identified the micro SD card Q1 (Ex. P
11) and S1 (Ex. P10) in the Court during his deposition.
74. PW18 IO Dy. SP Alok Kumar Singh has deposed that during investigation he had got forwarded through SP vide forwarding letter (Ex. PW14/A) the sealed exhibits containing micro SD cards Q1 & S1 to CFSL for opinion of voice expert. Those micro SD cards were examined by PW 14 Dr. Rajinder Singh, who has given his report as Ex. PW 14/B, according to which micro SD card 'Q1' contained 08 audio files, micro SD card 'S1' contained 05 audio files and questioned voice in 'Q1' was probable voice of sample voice of accused in 'S1'.
75. It is to be noted that micro SD cards 'Q1' & 'S1' did not play in the Court during trial when prosecution sought to play them during deposition of PW5 and PW17 respectively. They were then sent to CFSL for retrieval of data, on application of CBI.
76. PW19 Dr. Rajinder Singh has deposed that he had received the micro SD card Q1 in a sealed envelope for retrieval of data by the order of the Court and that there were 05 audio files in a hidden folder, of which he had prepared a copy in a CD which he had sent to the Court in a sealed cover along with his report Ex. PW19/B. Deposition of PW20 Sh. A. D. Tiwari, Principal Scientific Officer, CFSL & PW21 Sh. R. K. Srivastava, Principal Scientific Officer, CC No. 07/14 Page 37 of 45 CBI Vs. Lal Kishan @ Advani CFSL is to the effect that micro SD card S1 was received by PW20 by the Court order for retrieval of data, which was retrieved in the Computer Forensic Unit by PW21 Sh. R. K. Srivastava vide his report Ex. PW20/D on the basis of which PW20 gave report Ex. PW20/C. According to report Ex. PW20/D and deposition of PW21, there were 08 audio files in the micro SD card - 'S1'.
77. Deposition of expert witnesses - PW14 Dr. Rajinder Singh, PW 19 Dr. Subrat Kumar Chaudhary, PW20 Sh. A. D. Tiwari and PW21 Sh. R. K. Srivastava, has demolished the credibility of micro SD cards. The micro SD card Q1 (Ex. P11) which allegedly contained tape recorded conversation between the accused and the complainant to prove demand of bribe by the accused and micro SD card S 1 (Ex. P10) allegedly containing sample voice of the accused were sent to CFSL in sealed envelopes by IO Dy. SP Alok Kumar Singh (PW18) for expert opinion. They were examined by PW14 Dr. Rajinder Singh, a voice expert, who gave his report Ex. PW14/B. As per his report, micro SD card Q1 contained 08 audio files and micro SD card S1 contained 05 audio files. Data of micro SD card Q1 was retrieved by PW19 and according to his report Ex. PW 19/B, there were 05 audio files in it instead of 08. Similarly, the retrieved data of micro SD card S1 as per the report of PW21 Sh. R. K. Srivastava (Ex. PW20/D) CC No. 07/14 Page 38 of 45 CBI Vs. Lal Kishan @ Advani contained 08 audio files instead of 05 audio files. Discrepancy in the reports of the retrieved data with the first report of expert (Ex. PW14/B) is glaring which the prosecution has failed to explain and has proved fatal to this piece of evidence.
78. Otherwise also micro SD card Q1 when sought to be played by the prosecution during crossexamination of complainant Sh. Pawan Kumar (PW5) on 07.03.2017, it did not play in the Court and on the request of Sr. PP for CBI it was sent to CFSL for retrieval of the data. Though PW5 was offered for crossexamination to the defence counsel on the same day and his examination was concluded, the micro SD card Q1 was never played during deposition of PW5 or any other witness. Surprisingly, prosecution played the CD (Ex. PW21/C) containing the retrieved data of micro SD card S1 during deposition of independent witness PW17 Sh. Raghubir Singh, which contained 08 audio files out of which 04 files contained conversations between 0204 persons and the witness did not identify the voices of any of those persons. If this CD was the retrieved data of micro SD card 'S1', it ought not to have any conversations, since it was produced to contain only introductory voices of the independent witnesses and sample voice of the accused.
79. In view of the above evidence when the complainant Sh.
CC No. 07/14 Page 39 of 45CBI Vs. Lal Kishan @ Advani Pawan Kumar (PW5) has completely turned hostile and the electronic evidence (micro SD cards Q1 & S1) is found not credible, prosecution fails to prove the demand of bribe by the accused from the complainant.
80. With respect to acceptance of bribe money by the accused from the complainant, prosecution case put forth in the deposition of TLO Dy. SP Kailash Sahu (PW16) is that on the roadside near petrol pump at Green Park, he had seen the complainant (PW5) giving phenolphthalein treated GC notes to the accused in the presence of one Sh. Tiwari (PW 11 Sh. Vipin Kumar Tiwari) and further that after taking the bribe money, accused had taken out a wallet from his pant in which he kept the bribe money and then had put the wallet containing the bribe money in the back side pant pocket. PW16 has further deposed that after receiving signal from the complainant, he along with the trap team members reached at the spot and apprehended the accused, whom he challenged for receiving the bribe amount of Rs. 6,000/ from the complainant. Accused was caught hold by his wrists and his hand washes were taken in freshly prepared sodium carbonate solution, which turned pink. Bribe money was recovered from the wallet kept inside the pant pocket of the accused.
81. Complainant has not supported the prosecution case on material facts and has turned completely hostile. Nothing CC No. 07/14 Page 40 of 45 CBI Vs. Lal Kishan @ Advani could be retrieved in his lengthy crossexamination by the Sr. PP for CBI.
82. Chance witness PW11 Sh. Vipin Kumar Tiwari who according to the prosecution case is a witness of transaction has not supported the prosecution case on this fact and has deposed that he had not seen any transaction between the accused and the complainant. He also stated that he is not aware if any money was recovered from the accused and claimed that he was standing at a distance. He was cross examined by Sr. PP for CBI and was confronted with his statement under Section 161 CrPC (Ex. PW11/A), but he maintained that he had not seen the complainant giving Rs. 6,000/ to the accused on his asking or that any such money was recovered from the possession of the accused.
83. Though independent witness PW13 Sh. Muneesh Kumar has deposed on the line of TLO about the acceptance and recovery of bribe money from the accused, the other independent witness PW17 Sh. Raghubir Singh has deposed that he did not see the accused receiving the bribe money from the complainant because he was standing at a distance, but deposed that he had recovered the bribe money from the backside pant pocket of the accused kept in the wallet.
84. While 02 material witnesses (PW5 & PW11) have not supported the prosecution case about acceptance and CC No. 07/14 Page 41 of 45 CBI Vs. Lal Kishan @ Advani recovery of bribe money from the accused, there is material contradiction about the place of recovery in the documents and in the deposition of other prosecution witnesses. As per the recovery memo (Ex. PW5/L), accused had kept the bribe money in his purse which was then kept by him in his back side pant pocket. But as per the chargesheet, the bribe money was kept by the accused in his backside pant pocket. Rather it is clarified in the chargesheet that inadvertently it is wrongly mentioned in the recovery memo that accused had kept the tainted notes in his purse which was then kept in his pant pocket.
85. Further, TLO (PW16) who is author of the recovery memo (Ex. PW5/L) has deposed that bribe money was kept by the accused in his wallet, which was then put in the backside pant pocket and both independent witnesses - PW13 & PW17 have deposed on the same line, PW15 Dy. SP Ranvijay Singh has deposed that it was recovered from the pant pocket.
86. Another major contradiction in the testimony of the witnesses is about the phenolphthalein powder. As per the prosecution case and the deposition of TLO (PW16), after use of phenolphthalein powder in the pretrap proceedings at the CBI office in which phenolphthalein powder was smeared on the money to be used as bribe money, the left over unused phenolphthalein powder was returned to CC No. 07/14 Page 42 of 45 CBI Vs. Lal Kishan @ Advani Malkhana. However, it has come in the deposition of independent witness PW13 Sh. Muneesh Kumar that phenolphthalein powder was carried at the spot. The case of the prosecution in this regard takes further blow from the deposition of complainant (PW5), who in his cross examination has deposed that after demonstration of reaction of phenolphthalein powder in the pretrap proceedings at the CBI ofifce, bottles containing the pink water was carried by the CBI officials at the spot.
87. Credibility of the bottles containing the washes produced in the Court during trial is further dented by the discrepancy in the forwarding letter of the washes (Ex. PW 1/DX). As per the prosecution case 03 sealed bottles marked "LHW", "RHW" & "BSPPW" containing "left hand wash", "right hand wash" & "back side pant pocket wash"
respectively were sent to CFSL for chemical analysis. However, as per the forwarding letter Ex. PW1/DX, source of exhibit of all 03 bottles is - "left hand wash of accused Lal Kishan Advani". Prosecution has failed to explain the discrepancy which makes out a ground for discarding these exhibits as their credibility is highly doubtful.
88. Other contradictions which have come on record include the source of money used as trap money, which according to the prosecution story was arranged by the complainant (PW5), who not only turned hostile and did not support CC No. 07/14 Page 43 of 45 CBI Vs. Lal Kishan @ Advani the prosecution case on this fact, has rather come up with a different story that he had given money to CBI in different denomination to be given as bribe to some other persons namely - Vinod, Amir, Pawan and Amarjit. There is contradiction about the proceedings conducted by TLO immediately after apprehension of the accused at the spot. Prosecution case is that the complainant had returned to CBI office along with CBI team and the accused, but complainant (PW5) has deposed that he had returned home to arrange the money. On this fact, independent witness PW17 Sh. Raghubir Singh has also deposed contradictory to the prosecution story that complainant had left the spot after apprehension of the accused and did not return to the CBI office along with them. Complainant (PW
5) has also contradicted the time of execution of various documents prepared during investigation including trap proceedings.
89. In view of the fact that complainant has completely turned hostile, chance witness (PW11) has also not supported the prosecution case and there are material contradictions in the documents and deposition of other prosecution witnesses on record, acceptance and recovery of bribe money from the accused is not proved. Conclusion
90. In view of evidence on record and above discussion, CC No. 07/14 Page 44 of 45 CBI Vs. Lal Kishan @ Advani prosecution has miserably failed to prove the demand and acceptance of bribe by accused Lal Kishan @ Advani from the complainant Sh. Pawan Kumar (PW5). Therefore, accused is acquitted of the charge under Section 7 and 13(2) read with 13(1)(d) of PC Act. His bail bond is cancelled and surety is discharged. He is directed to furnish personal bond in the sum of Rs. 25,000/ with one surety of the like amount under Section 437A CrPC.
91. Case property comprising Rs. 6,000/ used as trap money be returned to the complainant as per rules.
92. File be consigned to the Record Room.
Announced in the open Court (Santosh Snehi Mann) on 07th February 2020 Special Judge (PC Act), CBI08, Rouse Avenue District Court New Delhi.
CC No. 07/14 Page 45 of 45CBI Vs. Lal Kishan @ Advani