Delhi District Court
U.P. vs . Anil Singh, Air 1988 Sc 1998, Supreme ... on 21 May, 2019
CBI/253/2019 RC-15(A)/2018
THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI-13,
ROUSE AVENUE DISTRICT COURT, NEW DELHI
Registration No. : CBI/253/2019
Under Section : 7 & 13(2) read with section 13 (1) (d) of
Prevention of Corruption Act, 1988.
Branch : CBI, ACB, New Delhi
FIR No. : RC-15(A)/2018
CNR No. : DLET01-004478-2018
In the matter of: -
CBI
VERSUS
SH. DEEPAK TOMER
S/o. Sh. Shri Mahi Pal,
R/o. E-482, Upper Ground Floor,
Chhajupur, East Babarpur, Delhi.
Also At: Village & PO- Shekoh Pur,
PS-Baraut, Distt. Baghpat, U.P. ........ACCUSED
Name and particulars of complainant : SH. DEEPAK KUMAR
S/o. Sh. Mool Chand,
R/o. H.No. C-53, Street No.1,
C-Block, Mukund Vihar,
Karawal Nagar, North East,
Delhi-110095.
Date of Institution : 22.06.2018
Date of reserving judgment : 07.05.2019
Date of pronouncement : 21.05.2019
Decision : Convicted
(Section 437-A Cr.P.C. complied with by accused)
Page 1 of 114 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court,
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JUDGMENT
THE CASE SET UP BY THE PROSECUTION :-
1 Briefly stated, the relevant facts of the case are that complainant Sh.
Deepak Kumar made a complaint to CBI alleging that accused demanded bribe of Rs.4 lacs from him to save his son Chirag Aggarwal in a case being investigated by accused. On receipt of such complaint from Deepak Kumar, SI T.K. Singh conducted a verification proceedings on 26.04.2018 at Karkardooma Courts and thereafter, on the basis of verification report, FIR was registered. A trap was laid under leadership of Insp. Raman Kumar Shukla on same day i.e. 26.04.2018 during night time and the trap team reached PS Khajuri Khas at about 10:20 PM. Accused was caught red handed, while demanding and accepting bribe of Rs.1 lac from complainant, in order to show favour towards son of complainant, who was arrested by accused being an official of Delhi Police, PS Khajuri Khas, in FIR No. 205/18 under various Sections including Section 376 IPC as well as Section 8/12 POCSO Act. 2 The sanction for prosecution against accused Deepak Tomar was accorded by competent authority. After completion of investigation, accused Deepak Tomar was charge sheeted for offences punishable under Section 7 and 13(2) read with section 13 (1) (d) of Prevention of Corruption Act, 1988.
CHARGES :-
3 On 31.07.2018, charges were framed against accused Deepak Tomar for offences punishable under Section 7 and 13(2) read with section Page 2 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 13 (1) (d) of Prevention of Corruption Act, 1988, to which he pleaded not guilty and claimed trial. It was alleged against accused Deepak Tomar that while posted as Sub Inspector at PS Khajuri Khas, North East District, Delhi, he demanded Rs.4 lacs as bribe from the complainant namely Deepak Kumar, to show favour to son of complainant namely Chirag Aggarwal in FIR no. 205/18, PS Khajuri Khas. It was further alleged against him that on 26.04.2018, at PS Khajuri Khas, Delhi, he demanded and accepted Rs. 1,00,000/- (Rs. One lac only) as bribe amount and illegal gratification from the complainant Sh. Deepak Kumar, in pursuance to aforesaid demand made by him and thereby he committed offence punishable u/s 7 of the Prevention of Corruption Act, 1988.
4 It was further alleged against him, that on 26.04.2018, at PS Khajuri Khas, he accepted Rs. 1,00,000/- (Rs. One lac only) from the complainant Sh. Deepak Kumar as a bribe amount and illegal gratification on the pretext that he would show favour to son of complainant in FIR No. 205/18, PS Khajuri Khas and to help him in getting bail, while abusing his position as a public servant and in official capacity, which amounts to misconduct within the meaning of Section 13(1)(d) of PC Act and thereby he committed an offence punishable u/s 13(2) read with Section 13(1)(d) of the PC Act, 1988. PROSECUTION EVIDENCE :-
5 Inspector Yogesh Malhotra was examined by this court as CW1, who was posted as SHO in PS Khajuri Khas on the date of incident, when the CBI raid was conducted, wherein accused Deepak Tomar was Page 3 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 apprehended and arrested by CBI team. Though, this witness was in the list of prosecution, but he was dropped by the prosecution. 6 Prosecution examined 14 witnesses in support of its case, as per following descriptions: -
Name Description Exhibited Documents PW1/Sh. He was DCP (North East), Ex.PW1/A (forwarding Atul Delhi. He accorded sanction for letter) & Ex.PW1/B Kumar prosecution of accused (sanction order). Thakur Deepak Tomar under PC Act,
on 18.06.2018, after he received a request letter dated 09.06.2018 sent to him by SP, CBI.
He identified his signature at point X on forwarding letter and signature along with official seal at point X on sanction order, in file (D-15) and proved the same. PW2/Sh. He was Nodal Officer in Bharti Ex.PW2/A (CDR of Wasim Airtel Ltd. He identified his mobile no. 9871018650); Mohd. initial with official stamp on Ex.PW2/B (original CAF each page at point X on CDR in respect of mobile no.
of mobile no. 9871018650 in 9871018650);
the name of Sh. Deepak
Kumar for the period of Ex.PW2/C (CDR of
25.04.2018 to 27.04.2018, in mobile no. 9716423870);
file D-13 and proved the same. Ex.PW2/D (certified copy
He also identified and proved of print out of E-KYC in
original CAF of this number. respect of mobile no.
He also identified his initial with 9716423870); official stamp on each page at Ex.PW2/E (certified copy point X on CDR of mobile no. of Cell ID Chart); 9716423870 in the name of Ex.PW2/F (certificate u/s.
accused Deepak Tomar for the 65-B of Evidence Act) & period of 25.04.2018 to 27.04.2018, in file D-13 and proved the same. He also Page 4 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 identified his initial with official Ex.PW2/D1 (another stamp at point X on certified certificate u/s. 65-B of copy of print out of E-KYC in Evidence Act, in respect respect of this number and of computer print out of proved the same. application in respect of mobile no. 9716423870).
He also identified his initial with official stamp at point X on certified copy of Cell ID Chart and on certificate u/s. 65-B of Evidence Act and proved the same.
He also identified his signature with official stamp at point X on another certificate u/s. 65-B of Evidence Act, in respect of computer print out of application in respect of mobile no. 9716423870 and proved the same.
PW-3/Sh. He was Assistant Manager in Ex.PW3/A (transcript, Abhishek Indian Overseas Bank, Preet which was matched by Kumar Vihar Branch, New Delhi-92. him with recorded He was one of the independent conversation on witnesses, who participated in 16.05.2018); verification proceedings and Ex.PW3/B (file D-10 i.e. trap proceedings. memo prepared on 16.05.
He identified his signature 2018);
appearing at point X on 11 Ex.PW3/C (file D-2 i.e. pages of file D-9(1) i.e. verification report, which transcript, which was matched was prepared on 26.04. by him with recorded 2018 by CBI official); conversation on 16.05.2018 and proved the same. Parcel/Ex.Q1 (parcel containing memory card, He identified his signature bearing signature of appearing at point X on file D- witness at point X); 10 i.e. memo prepared on 16.05.2018 and proved the same.
Page 5 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 He also identified his signature Ex.Article/PW3/1 (brown appearing at point X on each envelope);
page of file D-2 i.e. verification Ex.Article/PW3/2 (first report, which was prepared on cover of memory card) & 26.04.2018 by CBI official and proved the same. Ex.Article/PW3/C (plastic cover of memory card).
PW-4/Sh. He was complainant and was Ex.PW4/A (file D-1 i.e. Deepak witness of verification and trap complaint of PW4); Kumar proceeding in the present case. Ex.PW4/B (file D-4) i.e. He identified his signature pre trap memo. appearing at point X on his Ex.PW4/C (Annexure-A) complaint and proved the i.e. list of number of same. currency notes;
He also identified his signature Ex.PW4/D (file D-5 i.e. appearing at point Y on recovery memo);
Ex.PW3/C i.e. verification
memo. Ex.PW4/E (file D-9(II) i.e.
another transcript);
He also identified his signature
appearing at point X on pre Ex.PW4/F (document i.e. trap memo i.e. initial 5 pages of No.02 voice identification file D-4 and proved the same. cum transcription memo); He also identified his signature Ex.Article/PW-4/1 appearing at point X on (memory card containing Annexure A and proved the file namely 180426_1537 same. having conversation period of 20 minutes 38 He also identified his signature seconds taken place appearing at point X on all between complainant and pages of D-5 i.e. recovery memo and proved the same.
He also identified his
signatures at point Y on all the
pages of transcript i.e.
Ex.PW3/A.
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Rouse Avenue District Court,
New Delhi
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He also identified his signature accused Deepak in
appearing at point X on all the Karkardooma Court,
pages of file D-9(II) i.e. another Delhi) & transcript and proved the Ex.Article/PW-4/2 same. (memory card having file He also identified his signature no. 180427_0139 appearing at point Y on memo containing conversation dated 16.05.2018 i.e. Ex.PW between PW4 and 3/B. Deepak Tomar during raid, inside PS on 26.04.18).
He also identified his signature appearing at point X on document i.e. No. 02 voice identification cum transcription memo and proved the same.
He also identified his signature appearing at point Y on Ex.Article/PW-3/1, Ex.Article/PW-3/2 and on Ex.Article/PW-3/3, in which memory card was kept. He identified memory card containing file namely 180426_1537 having conversation period of 20 minutes 38 seconds taken place between complainant and accused Deepak in Karkardooma Court, Delhi and proved the same.
He also identified memory card having file no. 180427_0139 and having duration of 38 minutes 39 seconds. He heard the main part of the same and identified the same as conversation, which had taken place between him and Deepak Tomar during raid, inside PS on 26.04.18 during night hours. He further confirmed correctness of transcript Ex.PW-4/E, which pertained to the recording played herein above. He proved this memory card also.
PW-5/Sh. He was working as Senior Ex.PW5/A (a letter dated Ranjeet Assistant in Delhi Jal Board, 26.04.2018);
Kumar Jhandewalan. He was witness
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Special Judge (PC Act) CBI-13,
Rouse Avenue District Court,
New Delhi
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of trap proceeding inthe Ex.Article/PW-5/1 (an
present case. envelope having seal of
He brought and proved a letter 'CBI ACB ND 77/2017' dated 26.04.2018, which was mentioning "bribe money received by him from CBI. Rs.1,00,000/-" ); He also identified his signature Ex.Article/PW-5/2 (50 appearing at point Y on Indian Currency Notes in Ex.PW4/B. the denomination of Rs.2000/- kept in He identified his signature Ex.Article/PW-5/1); appearing at point X on an envelope having seal of 'CBI Ex.Article/PW-5/3 (a ACB ND 77/2017' mentioning glass bottle (containing "bribe money Rs.1,00,000/-" some quantity of water in along with particulars of this dark pink colour) sealed case. with the seal of 'CFSL New Delhi Chem.Div.D.B' He identified 50 Indian and having label of Currency Notes in the 'RHW');
denomination of Rs.2000/-
which were kept in Ex.Article/PW-5/4 (a Ex.Article/PW-5/1. He glass bottle (containing compared the same with some quantity of water Ex.PW4/C and proved the having no specific colour) same. sealed with the seal of 'CFSL New Delhi He also identified his signature Chem.Div.D.B' and appearing at point X on a glass having label of 'LHW');
bottle (containing some
quantity of water in dark pink Ex.Article/PW-5/5 (a
colour) sealed with the seal of glass bottle (containing 'CFSL New Delhi some quantity of water in Chem.Div.D.B' and having label light pink colour) sealed of 'RHW' and proved the same. with the seal of 'CFSL New Delhi Chem.Div.D.B' and having label of 'RSUPPW');
Page 8 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 He also identified his signature Ex.Article/PW5/6 (parcel appearing at point X on a glass sealed with seal of 'CBI bottle (containing some ACB ND 77/2017' and quantity of water having no mentioning "uniform pant specific colour) sealed with the of SI Deepak");
seal of 'CFSL New Delhi Ex.Article/PW5/7 (a
Chem.Div. D.B' and having khaki colour pant, which
label of 'LHW' and proved the was worn by the accused
same. at the time of raid);
He also identified his signature Ex.PW5/P1 (D-6 i.e. site appearing at point X on a glass plan);
bottle (containing some quantity of water in light pink colour) sealed with the seal of 'CFSL New Delhi Chem.Div.D.B' and having label of 'RSUPPW' and proved the same.
He identified his signature appearing at point X over the parcel sealed with seal of 'CBI ACB ND 77/2017' and mentioning "uniform pant of SI Deepak" and proved the same.
He also identified a khaki colour pant, which was seized from the accused and which was worn by the accused at the time of raid and proved the same.
He identified his signature appearing at point Y on each page of recovery memo i.e. Ex.PW4/D (colly. 7 pages), which was signed by him in PS Khajuri Khas.
He identified his signature appearing at point X on D-6 i.e. site plan, which was prepared in PS Khajuri Khas and proved the same.
Page 9 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 He also identified his signature appearing at point Y on a transcript i.e. D-9 (II).
PW-6/HC On 26.04.2018 he was working as Vigilance Assistant in Avnish Indian Oil Corporation, Lodhi Road, New Delhi. He was Kumar also independent witness of trap proceedings.
He identified his signature appearing at point Z on Ex.PW4/B i.e. memorandum of the proceedings, which was prepared by CBI officer and signed by him before leaving CBI office.
He also identified his signature appearing at point Z on Ex.PW4/C i.e. list of number of currency notes, which were handed over by complainant to CBI officer in his presence.
He also identified his signature appearing at point Z on Ex.PW4/D i.e. recovery memo and at point Y on Ex.PW5/P-1 i.e. site plan.
He also identified his signature Ex.PW6/A (file D-8 i.e. appearing at point X arrest arrest memo);
memo and proved the same.
He also identified his signatures on Ex.PW4/E, Ex.PW4/F, Ex. Article/PW-4/2, Ex.Article/PW-5/1, Ex.Article/PW-5/3, Ex. Article/PW-5/4, Ex.Article/PW-5/5, Ex.Article/PW-5/6, and Ex. Article/PW-5/7.
PW-7/Sh. On 27.07.2018 he was working as Principal Scientific
Deepak Officer (Physics) cum Assistant Chemical Examiner to the
Kumar Government of India, Central Forensic Science
Tanwar Laboratory, CBI, New Delhi.
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He identified his signature Ex.PW-7/A (report
appearing at point X on each prepared by PW7);
page, his official seal on last Ex.PW7/B (parcel having
page on the report prepared by endorsement of Q1 and
him on the basis of 4 exhibits CFSL No. CFSL-2018/P-
marked as Q-1, Q-2, S-1 & 536 PARCEL/Exhibit 'Q-
DVR and proved the same. 1');
He also identified his signature appearing at point X on a parcel having endorsement of Q1 and CFSL No. CFSL- 2018/P-536 PARCEL/Exhibit 'Q-1' and proved the same. He also identified a brown colour envelope i.e. Ex.Article/ PW3/1 bearing his signature on it at point Z; a memory card in cover i.e. Ex.Article/PW3/2, bearing his signature at point Y and the plastic cover containing the memory card i.e. Ex. Article/PW3/3 bearing his signature at point Z and a memory card i.e. Ex.Article/PW4/1.
He also identified his signature Ex.PW7/C (parcel having appearing at point X on a endorsement of Q2 and parcel having endorsement of CFSL No. CFSL-2018/P- Q2 and CFSL No. CFSL- 536 PARCEL/Exhibit 'Q-
2018/P-536 PARCEL/Exhibit 2');
'Q-2' and proved the same. Ex.Article/PW7/1 (cover He identified his signature of memory card); appearing at point Y on the Ex.Article/PW7/2 (plastic cover of memory card and cover containing memory proved the same. card);
He also identified his signature Ex.PW7/D (parcel having appearing at point Y on a endorsement of S-1 and plastic cover containing the CFSL No. CFSL-2018/P- memory card and proved the 536 PARCEL/Exhibit 'S-
same. 1');
Ex.Article/PW-7/3 (brown colour envelope);
Page 11 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 He also identified his signature Ex.Article/PW7/4 (cover appearing at point X on a of memory card);
parcel having endorsement of S-1 and CFSL No. CFSL-2018/P-536 PARCEL/Exhibit 'S- 1' and proved the same.
He identified his signature appearing at point X on brown colour envelope taken out from Ex.PW7/D and proved the same.
He also identified his signature appearing at point X on a cover containing memory card taken out from Ex.Article/PW-7/3 and proved the same.
He also identified his signature appearing at point X on a cover containing memory card and proved the same. He also identified his signature, report number and mark S-1, which was written by him on the memory card and proved the same.
He also identified his signature Ex.Article/PW7/5 (plastic appearing at point X on a cover containing the parcel having endorsement of memory card);
DVR and CFSL No. CFSL- Ex. Article/PW7/6
2018/P-536 PARCEL/Exhibit (Memory card);
'DVR' and proved the same.
Ex.PW7/E (parcel having
He also identified his signature endorsement of DVR and appearing at point X on brown CFSL No. CFSL-2018/P-
colour envelope and proved 536 PARCEL/Exhibit
the same. 'DVR');
He also identified his signature Ex.Article/PW-7/7 (brown appearing at point X on both colour envelope); sides, report number and mark DVR written on the DVR and proved the same.
Page 12 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 He brought his file containing Ex. Article/PW7/8 (DVR) the copy of transcripts supplied & to him in this case and proved Ex. PW-7/D1 (colly. 19 the same. pages) (copy of transcripts).
PW-8/SI He was also made a member of trap team, who along with T.K. Singh PW3 and PW4 joined the proceedings of this case.
He put cover of memory card in a brown envelope and sealed the same with brass seal and made endorsement of Q1 on the same along with particulars of this case. He identified case properties of this case and identified his signature appearing at point Z on Ex.Article/PW3/1, Ex.Article /PW3/2, Ex.PW3/C; at point Z1 on Ex.Article/PW3/3, Ex.PW4 /B, Ex.PW4/D and at point Z2 on Ex.PW4/C. He prepared memo of verification proceedings and put up the same along with recommendation for registration of case before SP.
PW-9/ ASI He identified his signature appearing at point X on page Surender no.3 of D-10. (Hostile witness) Singh PW-10/ He was posted as Inspector in CBI, ACB, New Delhi. He Insp. was assigned investigation of this case. Raman He formed a trap team consisting of two independent Kumar witnesses namely Sh. Ranjeet Kumar and Sh. Avnish Shukla Kumar as well as Insp. Anand Swarup, Insp. Sitanshu Sharma, Insp. Sanjay Upadhyay, Insp. R. Philip Yanthan, SI T.K. Singh and SI Pradeep. He also included complainant of this case and other subordinate officials in the team. He prepared a trap kit consisting of glass bottles, tumble, sodium carbonate powder, sealing materials, a file consisting of verification memo, complaint, copy of FIR, cash amount of Rs.1,000/-, stationary Page 13 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 materials, CBI seal, etc. He also prepared a handing over memo, thereby recording all the proceedings, which had taken place in the office before going for trap. He also attached list of particulars of currency notes with handing over memo.
He identified his signature appearing at point Z2 on each page of Ex.PW4/B and at point Z3 on Ex.PW4/C. During his examination-in-chief, he identified accused in the court.
He also prepared a search warrant u/s.165 Cr.P.C. and handed over the same to Insp. A.K. Singh thereby authorizing him to conduct search at the house of accused.
He identified his signature appearing at point Z on site plan i.e. Ex.PW5/P1.
He prepared a recovery memo, thereby recording all the proceedings taken place during trap and seizure of various items being taken into his possession. This recovery memo was signed by all members of trap team. He also identified his signature appearing at point Z2 on each page of Ex.PW4/D i.e. recovery memo.
Later on, he handed over case file to Insp. A.K. Singh for further investigation on the directions of SP, ACB New Delhi. Thereafter, Insp. A.K. Singh recorded his statement. He also identified his signature appearing at point Z on three bottles i.e. Ex.Article/PW5/3, Ex.Article/PW5/4 and Ex.Article/ PW5/5.
He also identified his signature Ex.Article/PW10/1 appearing at point Y on a (a brown envelope having brown envelope having endorsement of Q2); endorsement of Q2 with particulars of this case and proved the same.
Page 14 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 He also identified his signature appearing at point Z on Ex.Article/PW7/1, Ex.Article/PW7/2, Ex.Article/PW5/7, Ex. Article/PW5/1, at point Y on Ex.Article/PW7/3, Ex.Article/PW 7/4, Ex.Article/PW7/5, Ex.Article/PW7/7 and Ex.Article/PW 7/8 PW-11/ On 26.04.2018 he was posted as SP CBI, ACB, New Sh. V.M. Delhi.
Mittal Complainant Sh. Deepak Kumar gave him a written complaint regarding bribe being demanded by one Deepak Tomar of PS Khajuri Khas, Delhi Police. He marked that complaint for verification to SI T.K. Singh. He identified his signature appearing at point Y on Ex.PW4/A. On the same day, SI T.K. Singh submitted his verification report to him and he confirmed the allegations made by the complainant. On the basis of complaint and that verification memo, he got the FIR registered and the FIR was prepared on his instructions.
He identified his signature Ex. PW11/A (FIR i.e. D- appearing at point X on FIR i.e. 3);
D-3 and proved the same. Ex. PW-11/B (letter D-11 dated 10.05.2018) & Ex. PW-11/C (letter D-12 dated 16.05.18).
After registration of FIR, investigation was entrusted to Insp. Raman Kumar Shukla. Later on, on reporting of IO/Insp. A.K. Singh, he had forwarded the exhibits of this case i.e. hand washes and memory cards containing audio recordings and specimen voices to CFSL New Delhi through separate forwarding letters.
He also identified his signature appearing at point X on last two pages of letter D-11 dated 10.05.2018, which is one of such letters through which hand washes and pocket wash were sent to CFSL New Delhi. He proved the same.
Page 15 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 He also identified his signature appearing at point X on last two pages of letter D-12 dated 16.05.18, which is another letter through which memory cards Q1, Q2, S1 and DVR were sent to CFSL New Delhi. He proved the same.
PW-12/ On 18.05.2018, she was posted as Sr. Scientific Officer, Ms. Grade - II cum Assistant Chemical Examiner in CFSL, Deepti Lodhi Road, New Delhi. Bhargava She conducted chemical examination of solutions in three
sealed glass bottles and gave her expert opinion regarding presence of phenolphthalein in the same. She identified her signature Ex.PW-12/A (D-14 i.e. appearing at point X on both report prepared by sides of page of her report and PW12);
proved the same. Ex.Article/PW-12/1 (a
She also identified her parcel with seal of D.B.
signature appearing at point X CHEM.DIV.CFSL.NEW
on a parcel with seal of DELHI);
D.B.CHEM.DIV. CFSL.NEW Ex.Article/PW-12/2, Ex.
DELHI and proved the same. Article/PW-12/3 and Ex.
She identified her signature Article/PW-12/4 (three
with endorsement in black ink cloth pieces);
appearing at point X on all
three cloth pieces and proved
the same.
She also identified her signature with endorsement in black ink appearing at point X on all three cloth pieces and proved the same.
She also identified her signature appearing at point Z1 on label of all these bottles i.e. Ex. Article/PW-5/3, Ex. Article/PW-5/4 and Ex. Article/PW-5/5.
Page 16 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 PW-13/ He was also part of trap team. He identified his signatures Inspector appearing at point Z3 on Ex.PW4/B and at point Z4 on Ex. Sanjay PW4/C. He alongwith other team members and Upadhyay independent witness Sh. Avnish took their position outside the campus of PS. He and Sh. Anand Swaroop were standing near the gate of PS. After hearing noise of 'pakro pakro', he alongwith Sh. Anand Swaroop rushed inside and they were also shouting 'ho gaya, ho gaya' so as to alert other members of team. He caught accused from behind. He was joined by other members of the team i.e. Anand Swaroop, T.K. Singh, Philip and others. He caught left hand of accused through his wrist and T.K. Singh caught hold of right wrist of accused. He identified accused in the court during his examination-in-chief. He prepared a rough site plan of that place on the direction of TLO, after taking inputs from Ranjeet, Avinesh and other team members. This site plan was also signed by him, TLO and both independent witnesses. He identified his signature appearing at point Z1 on Ex.PW 5/P1, at point Z3 on Ex.PW4/D He proved his statement under Ex.PW-13/D1 (statement Section 161 Cr.P.C. of PW13 under Section 161 Cr.P.C.);
PW-14/ On 04.05.2018 on the directions of SP ACB, New Delhi, Inspector further investigation of this case was assigned to him. Ajay Insp. Raman Shukla handed over complete case file of Kumar this case to him on that day. On 10.05.2018 he sent hand Singh washes and pocket washes through forwarding letter of SP, ACB, to CFSL New Delhi for the purpose of examination so as to ascertain presence of phenolphthalein powder.
He identified his signature appearing at point Z on Ex.PW3/A, Ex.PW3/B and Ex.PW4/F and at point Z1 on each page of Ex.PW4/E. Page 17 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 He recorded statement of Abhishek and complainant u/s 161 Cr.P.C. on 16.05.18. On 17.05.18, he recorded statement of Insp. Yogesh Malhotra. On 21.05.18, he visited Karkardooma Court and recorded statement of ASI Surender.
He identified his signature at Ex.PW-14/A (production point X on production cum cum seizure memo);
seizure memo of certified Ex.PW14/B
copies of CDRs of mobile (voice identification
numbers used by complainant memo (part of D-10));
and accused along with Ex. PW14/D1 (statement
certified copy of CAF, KYC of Insp. Yogesh Malhotra
documents, location chart and under Section 161
certificate under Section 65B of Cr.P.C); Evidence Act, which were handed over by PW2 to him.
He proved the same.
He prepared voice
identification memo (part of D-
10). He identified his signature
appearing at point Y on the
same and proved it.
He recorded statement of Insp. Yogesh Malhotra under Section 161 Cr.P.C. He also identified his signature appearing at point X on the same and proved the same. Later on, he came to know that sanction order from DCP (NE) was received in his office and he received the same from his office. Thereafter, he prepared charge sheet and he filed charge sheet before Vacation Judge, Karkardooma Court, Delhi in June 2018. He identified his signature at point X on each page of charge sheet.
Page 18 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 Later on, on receipt of report from Physics Division, CFSL, New Delhi, I filed the same before this court through an application. On receipt of report from Physics Division, CFSL, New Delhi, he also filed the same before the court through an application.
7 Accused had admitted a number of documents under Section 294 Cr.P.C, hence, formal proof of the same were dispensed with. Accused was examined under Section 313 Cr.P.C. Accused opted to lead evidence in his defence and examined Ct. Sonu as DW1, lady/Ct. Meenakshi as DW2 and SI Satyadev Panwar as DW3. PLEA OF ACCUSED DEEPAK TOMAR UNDER SECTION 313 CR.P.C. 8 Accused took plea that son of complainant was not released from jail on 25.04.2018 due to technical reasons of jail authority, as clarification was sought by the jail authorities from court and the same was duly mentioned by him in the case diary no.02 dated 25.04.2018 of FIR No.205/2018. Subsequently, complainant out of vengeance lodged a false complaint against him and got him implicated in the present case. He further took plea that Ex.PW4/A is a fabricated document, which was prepared at a later stage, which is ante dated and ante timed. He further took plea that no conversation took place between him and complainant. He further took plea that signatures of the witnesses were taken at a later stage and that a false complaint was made by complainant. He further pleaded that any demand of bribe was not established against him and a false FIR Page 19 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 was registered on the basis of false and fabricated complaint and verification, which are ante timed. He admitted the evidence put by prosecution that there was a passage beside the police station building, but he denied that car was parked at the end of passage. He also admitted the evidence put by prosecution that he was taken to the room of SHO. He took plea that he was made to change his trousers in the room of one IO of PS Khajoori Khas. He further took plea that no proceeding was carried out in the room of SHO. He further took plea that signatures of independent witnesses were obtained at a later stage and no site plan was prepared at the instance of independent witnesses and their signatures were obtained at a later stage, which are ante timed. He further took plea that he was arrested at CBI office and place of his arrest had been wrongly mentioned in the arrest memo. He further took plea that the signatures of witnesses were obtained at CBI office and same were ante timed. He further took plea that recovery memo is ante timed and fabricated and false facts had been incorporated therein. He further took plea that the recording of conversations are fabricated evidence and did not contain his voice and also transcriptions are fabricated document. He further took plea that the hand washes had been planted upon him. He further took plea that a draft sanction only was sent to the DCP and the same was copied and signed accordingly and sanction had been accorded in mechanical manner by copying the replica of the draft sanction received from CBI. He further took plea that CDR of his mobile phone is incorrect.
Page 20 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 9 Accused further took plea that he is innocent and has been falsely implicated in the present case by complainant, as he had arrested his son namely Sh. Chirag in case FIR No.100/2018, under Section 376 IPC and Section 8/12 of POCSO Act, registered at PS Khajoori Khas. On this account, complainant nurtured ill will towards him and also because of the reason that he had refused to show any favour to him in the case against his son. He further took plea that he had never demanded or accepted any bribe amount from complainant and no bribe amount was recovered from him, rather the same had been planted upon him.
ARGUMENTS MADE ON BEHALF OF CBI: -
10 Ld. Sr. P.P. for CBI made arguments on the points of demand, acceptance, recovery and motive, in respect of the present case. He further argued that PW4/complainant proved demand made by accused Deepak Tomar. He also argued that testimonies of PW4, PW5 and PW10 show that there was acceptance of currency notes by accused Deepak Tomar in the present case. In respect of recovery, ld. Sr. PP argued that in the testimonies of PW4, PW5, PW6, PW8, PW10 and PW13 recovery of same currency notes have been shown from the possession of accused Deepak Tomar. Ld. Sr. PP for CBI also referred to mobile number of PW4/complainant i.e. 9871018650, of accused Deepak tomar i.e. 9716423870 and landline numbers of PS Khajoori Khas i.e. 22966851 & 22962735, to submit that CDRs of mobile numbers were duly proved and there is no infirmity in the same. He submitted that CDR of mobile phone of the Page 21 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 accused does not show any call from the land line of police station, therefore, there is no truth in the statement of DW-2. ARGUMENTS MADE ON BEHALF OF ACCUSED DEEPAK TOMAR: -
11 Ld. defence counsel argued that DW-2/lady/Ct. Meenakshi proved that accused was at police station on 26.04.2018 at 09:20 PM. He further argued that telephonic information given through land line numbers of police station Khajoori Khas is not reflected in CDR of mobile number pertaining to accused Deepak Tomar, therefore, this CDR is not correct record of calls. Ld. defence counsel further argued that DW-3/SI Satyadev Panwar proved that money was not demanded by accused Deepak Tomar and it was being put by complainant in the pocket of accused, but same was shrugged off and money fell down on ground. He further argued that no verification proceedings were carried out and it was a fabricated proceeding. Complainant was not present in CBI office prior to 04:50 PM, as reflected from CDR of his mobile number i.e. Ex.PW2/A (second page). Calls were made at mobile number i.e. 9871018650 pertaining to complainant, during 11:00 AM to 01:15 PM, which show his location at Karawal Nagar and Karkardooma. Ld. defence counsel further argued that as per testimony of PW4/complainant, he visited Lodhi Road at about 10:45-11:00 AM, but it was not possible for him to reach there from Karawal Nagar at 11:00 AM. As per testimony of PW4/complainant, he made call to accused from outside Karkardooma Court, but same is not so mentioned in verification Page 22 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 memo i.e. Ex.PW3/C. He further argued that CDR of PW4/ complainant does not show any call made from CBI office before 11:54 AM and no call as made to wife by PW4 is reflected. Thus, PW4 did not approach CBI office before evening. Ld. defence counsel further argued that time of arrival of PW3/Sh. Abhishek Kumar was 09:30 AM, whereas PW8/SI T.K. Singh deposed that after one or one and half hours, they (trap team) left CBI office i.e. around 11:00 AM, but PW4/complainant deposed in his testimony that he reached office at about 11:00 AM, though his CDR shows that his location was different. In his testimony, PW3/Sh. Abhishek Kumar deposed that he met PW4/complainant at about 01:00-01:15 PM. Ld. defence counsel further argued that PW6/HC Avnish Kumar deposed that he reached CBI office at 04:30 PM and after about 30- 45 minutes, phenolphthalein powder was applied, but verification memo i.e. Ex.PW3/C mentions that it was prepared between 05:30- 07:00 PM. Therefore, pre-trap proceedings could not take place at 05:00 PM.
12 Ld. defence counsel further argued that time of 03:00 PM to meet accused Deepak Tomar at Karkardooma Court was not pre-fixed and it was not so mentioned in complaint, whereas PW3/Sh. Abhishek Kumar deposed that PW8/SI T.K. Singh informed him time of 03:00 PM fixed by accused to meet complainant, though it is nowhere in evidence that when such time was fixed. He further argued that neither seal nor DVR were handed over to PW3 nor did PW3 deposed about receiving seal, though it was so mentioned in Page 23 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 verification memo. PW3 deposed about leaving CBI office at 07- 07:30 PM, though handing over memo Ex.PW4/B mentions time of 07:45 PM. Ld. defence counsel further argued that independent witnesses namely Avnish and Ranjeet were already present in CBI office, even prior to preparation of verification memo and their requisition. He further argued that PW5 did not depose about handing over of DVR and seal to him by PW3. Even no such suggestion was given to PW5 by PP. He further argued that PW6/Avnish Kumar also did not say that DVR was produced by Ranjeet before TLO. Even PW8 did not depose that Abhishek handed over DVR and seal to Ranjeet.
13 Ld. defence counsel further argued that on page 3 of recovery memo i.e. Ex.PW4/D, it is mentioned that PW5/Ranjeet corroborated version of PW4 during trap proceedings. Site plan shows that PW5 was with PW4. PW5 deposed that he was only at gate and could not see anything, whereas PW4 gave different description of location of PW5 i.e. 4-5 steps away from PW4. He further argued that if TLO and other CBI officer had seen accused Deepak Tomar taking money, they would not have given chance to accused to move away nor they would have waited for any signal. He further argued that one Dinesh was also with complainant, but prosecution concealed this fact. Ld. defence counsel further argued that no suggestion was given to PW6 that Ranjeet was inside the PS with complainant or TLO & other CBI officers were inside the campus of police station Khajoori Khas. PW8 did not specify location of team members. PW5/Ranjeet did not say Page 24 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 that signal was given by TLO/PW10, though PW10 claimed so. PW10 introduced story of being eyewitness, only as after thought story and similar stand was taken by PW13. This fact was not so stated in statement under Section 161 Cr.P.C by anyone of them. He further argued that recordings are tempered and did not contain voice of accused Deepak Tomar. No public witness deposed about taking specimen voice of accused. No suggestion was given by ld. Sr. PP for CBI to any prosecution witness that specimen voice of accused was taken in their presence.
14 Ld. defence counsel further argued that PW7/Sh. Deepak Kumar Tanwar was not expert, in view of provision under Section 79-A of Information Technology Act. According to ld. Counsel, since CFSL, New Delhi is not notified under Section 79-A, therefore, report given by PW-7 is not admissible in evidence. He submitted that, the term used 'may' in Section 79-A of Information Technology Act should be read as 'shall' and it is mandatory provision. He further submitted that PW7 was not asked to opine, if recorded conversation was tempered or not. He further argued that specimen voices should have been mixed with unknown voices.
15 Ld. defence counsel further argued that prosecution concealed that TLO was also part of verification team. Hence, whole proceedings is tainted. It also means that TLO was not an independent official. He further argued that amount of Rs.1 lac was yet to be fixed, still PW-4 called his wife in advance to ask her to bring Rs.1 lac. Calls made by complainant/PW4 are not reflected in CDR of his mobile phone. Ld. Page 25 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 defence counsel further argued that recovery memo mentions that demand was made orally, but PW4/complainant said that demand was made through gesture. TLO's statement that he heard the demand is, thus, false.
16 In rebuttal, ld. Sr. PP for CBI argued that PW3 was independent witness, who confirmed talk between complainant and accused during verification proceedings. He further argued that contradictions pointed out by ld. defence counsel are minor, which do take place in evidence.
JUDGMENTS RELIED UPON BY LD. DEFENCE COUNSEL IN SUPPORT OF HIS ARGUMENT: -
17 Ld. defence counsel relied upon Anil Sharma v. State of Jharkhand, 2004 (3) RCR (Cri) 774 and State of Haryana v. Ram Singh, 2002 (1) JCC 385 SC, to submit that equal treatment be given to evidence of prosecution and defence. 18 Ld. defence counsel relied upon Joginder Singh v. State of Haryana, 2014 (1) RCR (Criminal) 248 Supreme Court, to submit that withholding the material witnesses by the prosecution without any reason is fatal for prosecution.
19 Ld. defence counsel relied upon State of Gujarat & Ors. v. Utility Users Welfare Association & Ors., (2018) 6 Supreme Court Cases 21 and Sarla Goel & Ors. v. Kishan Chand, Civil Appeal No.4162/2009 (Arising out of SLP No.10005 of 2008) decided by Supreme Court on 08.07.2009, to submit that use of term 'may' should be read as 'shall' and therefore, the provision under Section Page 26 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 79A Information Technology Act should be containing a mandatory direction for notification to examine electronic evidence. 20 Ld. defence counsel relied upon State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede, 2009 (4) C.C. Cases (SC) 31, to submit that when two views are possible, then the view going in favour of accused should be prevailed upon the favourable view for prosecution.
21 Ld. defence counsel relied upon Selvaraj v. State of Karnataka, Crl. Appeal No.1172 of 2008, decided by Supreme Court on 18.08.2015, to submit that recovery of tainted money is not sufficient to convict the accused and demand must be established beyond reasonable doubt.
22 Ld. defence counsel relied upon State of Rajasthan v. Mohan Lal, 2009 (2) RCR (Criminal), to refer the situation that independent witness in that case also did not see the transaction nor did he hear the conversation and therefore, the court acquitted accused in the case.
23 Ld. defence counsel relied upon Sunil Kumar Sharma v. State (CBI), 2007 (3) Crimes 160 Delhi, to project ingredients of alleged offence and to project standard of proof required in such case. 24 Ld. defence counsel relied upon Nilesh Dinkar Paradkar v. State of Maharashtra, 2011 (4) Supreme Court Cases 143, to point out that court had been very cautious, while dealing with voice identification and to point out that court observed that conviction purely on the basis of evidence of voice identification should not be encouraged. It Page 27 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 was further pointed out that court ignored the voice identification evidence, because no attempt was made to mix voices of accused and complainant/witness with other unidentified voices in the sample/ specimen voice.
25 Ld. defence counsel relied upon Suraj Mal v. State (Delhi Administration), AIR 1979 Supreme Court 1408, to submit that when a witness makes inconsistent statement, then such witness becomes unreliable.
26 Ld. defence counsel relied upon Prem Singh Yadav v. CBI, 2011 (2) JCC 1059 Delhi; Ronal Kriprono Ramkat v. State of Haryana, 2001 (3) RCR (Crl.) 766 SC and Dr. S.L. Goswami v. State of Madhya Pradesh, 1972 SCC (Cri.) 258; to submit that burden of proof cast on prosecution is much heavier than the burden shifting upon the accused and the burden cast upon accused under Section 20 of the Act.
27 Ld. defence counsel relied upon State v. Girdhari Lal Verma, 2011 (4) RCR (Cri.) 245 Delhi, to show that when shadow witness could not hear the crucial talk, then demand was not found proved by the court.
28 Ld. defence counsel relied upon State of Punjab v. Madan Mohan Lal Verma, AIR 2013 Supreme Court 3368, to show that complainant is treated as interested witness in such cases and therefore, corroboration is very important in such cases. APPRECIATION OF EVIDENCE AS WELL AS ARGUMENTS AND FINDINGS :-
Page 28 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018
29 Ingredients of Section 7:-
Before I look into the evidence and appreciate the arguments, it is appropriate to refer to the requirements to establish a case under Section 7 of the Act. Same may be summarised in following manner :-
29.1 The accused at the time of offence, was or expected to be a public servant;
29.2 Accused accepted, or obtained, or agreed to accept or attempted to obtain from some person a gratification; 29.3 That such gratification was not legal remuneration due to him; 29.4 Accused accepted the gratification in question as a motive or reward for :-
29.4.1 Doing or forbearing to do any official act; or 29.4.2 Showing or forbearing to show favour or disfavour to someone in the exercise of his official functions; or rendering or attempting to render any service, disservice to someone.
Ingredients of Section 13 (1) (d):-
30 This provision deals with the offence of criminal misconduct and different clauses refer to different kinds of criminal misconduct. The constituents of criminal misconduct under clause (d) (i) & (ii) are as follows:
30.1 Accused being a public servant obtained for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means; or Page 29 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 30.2 Accused by abusing his position as a public servant, obtained for himself or for any other person, any valuable thing or pecuniary advantage.
31 As far as first requirement is concerned, there is no dispute to the fact that at the time of commission of alleged offences, accused was working as Sub Inspector in Delhi Police and was posted in police station Khajuri Khas, Delhi. Therefore, accused was a public servant at the relevant time.
32 As per allegations, accused demanded bribe of Rs. 4 lacs from the complainant, in order to show favour in a case registered against son of the complainant. The bribe amount was later on bargained at Rs. 1 lac as the initial payment, which was accepted by accused in PS Khajuri Khas and simultaneously he was apprehended by CBI trap team. The bribe amount was recovered from the possession of accused. According to ld. Sr. PP for CBI, all the allegations have been proved against the accused, but ld. defence counsel challenged the credibility of prosecution evidence and for that purpose, he referred to statements of several PWs, to submit that those were material contradictions and embellishment and had the effect to falsify the claim of prosecution. Per contra, ld. Sr. PP for CBI termed those alleged contradictions or improvements as insignificant. I shall deal with such contentions of defence one by one. Those contentions have been explained in detail in the written arguments of accused, wherein the instances of improvements and contradictions have been referred by ld. defence counsel.
Page 30 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 33 The Courts have been dealing with the contentions related to contradictions and improvements in the evidence and various guidelines/observations for the purpose of appreciation of such evidence have been laid down by the superior courts. In State of U.P. Vs. Anil Singh, AIR 1988 SC 1998, Supreme Court held that :-
"With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses."
34 Thus, the duty of the court is to cull out the nuggets of truth from the evidence. With such approach, I will venture into the evidence related to different aspects of this case. The first material aspect of the case relates to allegations of demand, which is a necessary ingredient of the alleged offences.
DEMAND:
35 The relevant witness to prove element of demand was the Page 31 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 complainant/PW4. Besides evidence of PW4, prosecution also relied upon the recorded conversations. I shall first of all deal with the evidence of PW4. Several documents were admitted by accused and as per facts emerging out of those admitted documents, accused was IO in FIR No. 100/18 u/s 363 IPC PS Khajuri Khas, wherein son of complainant/PW4 namely Chirag was the accused. Accused had arrested Chirag in that case and Section 376 IPC & Section 8/12 of POCSO Act were added in that FIR. The Court of Sh. Praveen Singh, ld. Special Judge POCSO Act/ASJ-I, North East, Karkardooma Courts, Delhi raised objection against addition of aforesaid provisions in that FIR, vide order dated 23.04.18. It was observed that a fresh FIR should have been registered on the basis of allegations made by the victim, rather than arresting Chirag in FIR No. 100/18 U/s 363 IPC. Thereafter, FIR No. 205/18, u/s 376/420/34 IPC and 8/12 POCSO Act was registered against Chirag. Chirag was still in JC in FIR No. 100/18 and vide order dated 25.04.18, same court directed for release of Chirag in FIR 100/18, on the basis of such application moved by IO/accused herein. However, Chirag was not released from jail on that day i.e. 25.04.18. Accused herein recorded such fact in his case diary in FIR No. 205/18 dated 25.04.18. 36 As per testimony of PW4, his son was taken away from his home during early hours on 22.04.18 by some police officials including accused herein. At that time, accused told PW4 that his son was already involved in the cases and if complainant gave Rs. 4 lacs to the accused, then accused would have sorted out the cases and son Page 32 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 of complainant could be released. Complainant pleaded innocence for his son and stated as to why he should pay money. Accused responded back that whether son was more important to the complainant or money was important to him. Complainant expressed his inability to make payment of such huge amount, then accused told him to decide by next date. Same day, his son was produced in a court and was sent to jail. On 25.04.18, when his son was produced before the court, the judge released his son and directed accused to lodge fresh case of rape against his son and then to arrest him in such new case. On that day, complainant again met accused outside court no. 72 on 6th Floor of Karkardooma Court. Once again accused asked complainant to arrange money by next day, stating that he would mollify the statements of complainant and witnesses against son of complainant and thus, his son would get bail in the new case. Though, son of complainant was to be released in the night of 25.04.18, but he was not released that night from jail. Complainant thought that without taking money the police officials would not mend their ways. Therefore, he visited CBI office at Lodi Road on next day i.e. 26.04.18, to make complaint against demand of money by police official. A senior officer referred the complainant to Sh. T.K. Singh/PW8. That senior officer asked T.K. Singh to make enquiry into the grievances of the complainant and to take further action. 37 Testimony of PW4 further mentions that T.K. Singh made enquiry from him about his grievances and thereafter, he made call to someone. PW4 wrote an application about his grievances. He gave it Page 33 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 to T.K. Singh. One witness namely Abhishek/PW3 was called there. Complainant/PW4 as well as T.K. Singh explained the grievances to Abhishek/PW3. T.K. Singh told PW3 that he had to accompany them to Karkardooma Court for enquiry. PW4 proved his complaint given to CBI as Ex. PW4/A and deposed that he had made true allegations in that complaint. The said complaint was shown to PW3 also in CBI office.
38 Thus, PW4 described as to when the first demand was made by accused in the sum of Rs. 4 lacs. He also described the purpose of making such demand. The testimony of PW3, PW4 and PW8 further refers to a verification proceeding conducted in this case by PW8. They further referred to a DVR and a new memory card, being arranged by PW8 before going for verification proceedings. As per their testimony, they went to Karkardooma Court on same day for verification proceedings, wherein complainant/PW4 had to again meet the accused and had to fix the amount of bribe as well as time and place for handing over bribe amount. As far as visit of PW4 to Karkardooma Court on same day in the afternoon is concerned, accused did not dispute this fact during cross-examination of PW4. Rather it was suggested by defence to PW4 that immediately after few seconds of meeting complainant, accused went to/entered into Court no. 68. PW4 took stand that he did not see as to where did accused go after having meeting with him. He denied that accused entered into Court no. 68 immediately after few seconds of meeting him. In any case, the aforesaid suggestion given by defence has an Page 34 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 acknowledgement of the fact that PW4 had come to Karkardooma Court on 26.04.18 and he did meet accused near court no. 68. In fact, defence examined DW-1/Ct. Sonu and relied upon his testimony, wherein DW1 deposed that one or two persons shook hand with accused near court no. 68 and thereafter, accused alongwith DW-1 came to court no. 68. Accused has disputed the alleged conversation between PW4 and himself in Karkardooma Court and has challenged the evidence relating to recording of such alleged conversation. I shall deal with such part of evidence hereinafter, however, it is relevant to note that the factum of visit of PW4 to Karkardooma Court and meeting accused near Court no. 68 stands well established on the record, without any dispute. 39 Aforesaid fact is relevant to be noted because, ld. defence counsel argued that no verification proceedings were carried out. In support of such arguments, he referred to CDR of mobile phone no. 9871018650 (which belonged to complainant) i.e. Ex. PW2/A. He submitted that though the complainant/PW4 as well as PW8 deposed about visit of PW4 to CBI office around 11 a.m., but the location of mobile phone of complainant at 11.06 a.m. was at Karawal Nagar, Delhi. Location of this phone at 11.23 a.m. was at Bhajanpura and location of this phone at 1.16 p.m. was at Karkardooma. Thus, the time referred by these witnesses do not match with the location of the mobile phone of the complainant. Ld. counsel further argued that it was not mentioned in the complaint Ex. PW4/A that accused had called complainant to meet him at Karkardooma Court at 3 p.m., nor Page 35 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 did any other document mention this fact. Still, PW3, PW4 and PW8 deposed that they had to visit Karkardooma Court for verification purpose at 3.00 p.m. as accused had asked the complainant to come at that time and place. Ld. counsel submitted that even no phone call was made by complainant to accused from CBI office, so as to fix this time. Therefore, all these facts were artificially deposed by PWs and entire verification proceeding was prepared subsequently with ante time and date.
40 It is true that location of above mentioned mobile number of complainant was at different places from 11.06 a.m. to 1.16 p.m. However, no one sought any clarification from PW4 that whether he had been carrying the same mobile phone number through out that day or whether such mobile number was being used by some different person before PW4 came to Karkardooma Court for verification process. There is no such claim made by PW4 that the aforesaid particular number was being carried by him at all the times on that day.
41 The cross-examination of PW4 shows that PW4 mentioned that their vehicles were parked near big mall, which corresponded to the description of Cross River Mall or Aditya Mega Mall. Since, he was asked to arrange Rs. 1 lac during the first half of the day itself, therefore, he had asked his wife telephonically to bring amount of Rs. 1 lac to Karkardooma Court and his wife had met him near the mall itself, so as to hand over Rs. 1 lac. She had met him after complainant had meeting with accused. He made such call to his Page 36 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 wife, while leaving CBI office for Karkardooma Court. PW4 had not informed any CBI officers about making such call to his wife or about receiving Rs. 1 lac from his wife near the mall. 42 Though, defence gave suggestions that complainant neither made such call to his wife nor his wife came to meet him at Mall nor such amount was delivered by her to complainant, but complainant denied such suggestions. The contention of defence had been that such facts were in the nature of improvements and therefore, such facts were not recorded either in the verification proceedings i.e. Ex. PW3/C, nor in the statement of PW4.
43 In order to assess aforesaid arguments, I will refer to the testimony of PW3 and PW8. PW3 was the independent witness, who was joined in the verification proceedings. This witness also deposed that on 26.04.18, he reported to CBI office as per instructions received from his own office. On that day, at about 1-2 p.m., he was taken into a chamber by CBI officer namely Mr. Singh and he was introduced to a complainant namely Mr. Deepak Kumar. CBI officer informed him that they have to go to Karkardooma Court for verification purposes and he was supposed to follow the complainant. PW3 also deposed that they reached near cross-river mall at about 2 p.m. and parked their vehicle. He further deposed about following complainant to the 4th floor of the building near Court no. 68. He also deposed that a person in police uniform i.e. accused met complainant in front of Court no. 68 and both of them sat on the chairs and had talk for about 10 minutes. Thereafter, complainant started going back to Page 37 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 down stairs. CBI officer had also come there. During his cross- examination by defence, PW3 clarified that Mr. Singh was actually Mr. T.K. Singh and he had informed PW3 that accused had fixed time of 3 p.m. to meet complainant at Karkardooma Court. He also deposed that when complainant and accused were sitting, then he had also taken seat after 4-5 vacant seats for few minutes and thereafter, he had moved on pretending to talk on his mobile phone. He denied the suggestion that when complainant met accused in front of Court no. 68, at that time accused simply shook hands with him and immediately thereafter, went inside Court no. 68. He also denied the suggestion that accused and complainant did not have any talk.
44 Verification officer/PW8/SI T.K. Singh deposed that complainant had informed him that suspect official had called him in Karkardooma Court at 3 p.m. After giving necessary instructions to complainant and PW3, they proceeded to Karkardooma Court. PW3 was asked to follow the complainant and he had been also following the complainant. He further deposed that complainant first of all went to sixth or seventh floor of the Court building, where he could not find the suspect and thereafter, complainant made call to someone, keeping his phone on speaker mode and he was called at fourth floor, in front of Court no. 68. Thereafter, complainant came to fourth floor and PW3 also followed him. Complainant met a police official near Court no. 68 and both of them sat on a corner chair, in front of that court room. Both of them had conversation for around 10 or 12 Page 38 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 minutes and thereafter, complainant left that place. 45 According to PW8, they would have reached Karkardooma court at about 3 p.m. and no call was got made from complainant to the accused to fix time of meeting or to make enquiry about availability of the accused. Similar suggestion was given to this witness that accused shook hand with complainant and went back to Court no. 68, which was denied by him.
46 The first thing I would like to mention here that complainant was not a person having higher degrees of elementary education. I had the opportunity to examine the complainant and other witnesses of this case and I could not sense any extraordinary skill on the part of the complainant to respond to any question cleverly. This witness appeared to be having average intelligence quotient (IQ). For the purpose of assessment of testimony of any witness, these factors have to be kept in mind. The crafting skill of this witness can be also ascertained from the complaint given by him to CBI i.e. Ex. PW4/A. I find his complaint to be in simple language and made in a very rustic manner. Therefore, I do not find any abnormality in the fact that in his complaint Ex. PW4/A, complainant did not mention that accused had asked him to meet him at Karkardooma Court at 3 p.m. These kind of omissions do take place because the skill of narrating the facts very minutely, differs from person to person.
47 As already observed by me herein above, accused acknowledged having met complainant before Court no. 68 in Karkardooma Court. Complainant/PW4 as well as PW8 mentioned in their testimony that Page 39 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 they had first gone to the 6th floor of the building and thereafter, they came downstairs to the 4th floor, on the basis of a telephonic talk between the complainant and the accused. It is within my personal knowledge that the court of Sh. Praveen Singh, Special Judge, used to be on 6th Floor of the building, because at the relevant time, I was also posted in Karkardooma Court. The son of complainant was initially produced before Sh. Praveen Singh i.e. at 6 th floor, therefore, the visit of complainant to 6 th floor was a normal course of action on his part, because he had been visiting that court till 25.04.18. There was no basis for the complainant to know that accused would be available near or in the Court no. 68 situated on the forth floor. Therefore, complainant could not have come to Court no. 68 on his own, merely on the basis of some guess work. If he reached near Court no. 68 to meet accused and accused did meet him in front of that court room, then it means that complainant was given information by accused about his actual location in that building and only then complainant could come to Court no. 68. PW4 did depose that he asked the accused about his location in Karkardooma Court telephonically and accused asked him to come to fourth floor. Even PW8 deposed that he saw complainant/PW4 talking to someone on phone and thereafter, PW4 came downstairs from 6 th floor to 4th floor, as per instruction given to him on phone. Therefore, I do not find any suspicious element in the testimony of PW3/PW4/PW8 regarding facts related to their visit to Karkardooma Court. 48 Moreover, when admittedly complainant met accused in Page 40 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 Karkardooma Court after 3 p.m., then whether such fact was mentioned in the complaint or whether complainant was made to call the accused telephonically to fix time and place of meeting, all these questions become redundant. It cannot be assumed that without having such pre-arranged time and place of meeting, all aforesaid witnesses would have come to Karkardooma Court at that particular time. In the same CDR i.e. Ex.PW2/A, I can find a call made to mobile number of accused at 3.45 p.m. and at that time location of mobile phone of complainant is shown to be near Vishwas Nagar Terminal i.e. around the Karkardooma Court. Interestingly, accused did not opt to take any particular stand in respect of this particular telephonic conversation between them for about 36 seconds. Even prior to 26.04.18, there had been exchange of calls between mobile number of complainant and mobile number of accused on 25.04.18. Out of 4 calls, 1 was made from mobile phone of accused to the mobile phone of complainant. On 26.04.18, there was a call from mobile number of accused to the mobile number of complainant at 1.16 p.m. I am referring to these calls only to show that it was not only complainant who had been making contact with the accused, but at times even accused used to make calls to the complainant. Therefore, it cannot be very improbable situation that time and place for this meeting would have been fixed between accused and the complainant.
49 As far as different location of mobile phone of complainant at about 11 a.m. is concerned, this fact becomes insignificant in view of Page 41 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 admitted meeting between complainant and accused in Kakardooma court after 3 p.m. It may be possible that this phone would have been used by someone else and thereafter, this phone would have been handed over to complainant near cross-river mall by his wife, when complainant reached there. It was expected from the IO to seek such clarification from the complainant during investigation, but it appears that probably minute analysis of CDR was not done by him. Even defence counsel did not opt to seek a clear cut stand from PW4 that whether he had been carrying same phone through out the day or there was any occasion to change phone or get aforesaid number at some subsequent time after visiting CBI office in the morning. 50 Defence challenged the veracity of verification proceedings as well as verification memo. The only meaningful purpose behind such challenge can be to dispute the allegations of demand, which finds mention in the verification memo as well as in the testimony of PW4. Defence alleged that the verification memo was a document, which was subsequently prepared, though no such proceedings had taken place. Defence also challenged reliance of prosecution upon verification memo i.e. Ex. PW3/C, on the grounds of variation of time as appearing in the testimony of several witnesses i.e. PW3, PW4, PW6 and PW8. Reference was also made to the testimony of PW4, wherein he mentioned about Shuklaji being one of the members of the verification team, though he is not shown to be a member of verification team in the memo.
Page 42 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 VERIFICATION MEMO:-
51 Verification memo was signed by PW8 as verification officer and it was also signed by PW3 and PW4 as independent witnesses. In the verification memo, PW8 recorded all the steps taken by him during the verification proceedings as well as the developments taken place during this proceedings. However, as far as the paragraph relating to alleged demand made by accused from the complainant is concerned, it is well apparent that this paragraph was based upon the statement given by complainant/PW4 before PW8. This paragraph is to be read from the perspective that what was stated by PW4 before PW8 at the relevant time, which can be relevant only within the parameters of Section 8 of Indian Evidence Act, so as to show the conduct of PW4. However, that much part of verification memo, otherwise cannot prove the allegations of demand. The demand has to be proved through other evidence and therefore, the verification memo, for the purpose of looking into the issue of demand, does not remain important piece of evidence. This memo can be used only in aid to other substantive piece of evidence. 52 Ld. defence counsel claimed that complainant did not visit CBI office on 26.04.18, prior to 4.50 p.m., therefore, the verification memo contained all false reporting of facts. This contention was based on CDR and location chart pertaining to mobile phone of complainant. However, I have already observed herein above that there is no clarity over the fact if complainant had been using same mobile number through out the day on 26.04.18. There was possibility that Page 43 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 complainant could change his phone near Cross River Mall and therefore, this situation in itself cannot be a ground to reject the consistent deposition of PW3, PW4 and PW8. Therefore, this argument cannot be given much attention.
53 Ld. counsel had asked several timings from aforesaid witnesses and on the basis of the estimation of time given by these witnesses, it was argued that verification memo was ante timed, though PW6 deposed that pre-trap proceedings had started around 5-5.15 p.m. PW6/HC Avnish was called to join trap proceedings. As per his testimony, he reached CBI office at about 4.30 p.m. During his cross- examination by defence, he deposed that the powder over currency notes would have been applied after around 30-45 minutes from his arrival at CBI office. The verification memo Ex. PW3/C mentions that the proceedings of this memo started at 5.30 p.m. and concluded at 7 p.m. On the other hand, PW5/Sh. Ranjeet Kumar (independent witness who also joined the trap proceedings) deposed that on 26.04.18 at about 5 p.m., he received a letter from his Vigilance Department containing direction to report to CBI office in 1-1.30 hours and he reached at CBI office at 6.30 p.m. In CBI office, he was sent to Mr. Shukla (PW10), who introduced him to PW4. One other person was also present there. PW4 explained his complaint to him and thereafter, PW5 was informed that they had to go to apprehend that SI, who had demanded bribe from PW4. PW5 further mentioned that PW4 had brought amount of Rs. 1 lac in cash and number of those currency notes were typed by CBI officer. Thereafter, PW5 and Page 44 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 PW6 were asked to cross-check number of those currency notes on that paper. PW5 mentioned that PW6 was already present prior to him. In his cross-examination by defence counsel, PW5 mentioned that he would have met complainant/PW4 in CBI office at about 7 p.m. 54 On the other hand, PW3 in his deposition deposed that all of them had come back to CBI office after verification proceedings at about 5 p.m. At about 7 p.m. another witness had come and PW3 had handed over DVR to him. He further deposed that a detailed report of verification proceedings was prepared between 5 to 7 p.m. and after handing over the DVR he signed the same and left the CBI office. On the other hand, PW4 during his cross-examintion by defence counsel deposed that after he reached back CBI office from Karkardooma Court, two other independent witnesses namely Ranjeet and Avanish met him after around 1-1.30 hours. He further deposed that Abhishek/PW3 left CBI office after around 15 minutes of arrival of Ranjeet and Avanish.
55 If I appreciate aforesaid testimony of all relevant witnesses together, then I find that the estimation of time given by PW6 regarding application of powder on currency notes (which signified pre-trap proceedings) may not be very correct estimation of time. Estimation of time is given by any witness on the basis of some guess work, therefore, there is bound to be variation in the time mentioned by different witnesses related to same happening. These variations, therefore, cannot be given much importance. Except for estimation of Page 45 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 time given by PW6, the testimony of other relevant witnesses i.e. PW3, PW4, PW5 and PW8 are almost consistent regarding the time of returning back to CBI office from Karkardooma Court or regarding the complainant meeting other independent witnesses i.e. PW5 and PW6 around 7 p.m. In that situation, I do not find any merit in the argument of defence that verification memo was prepared ante timed.
56 Ld. counsel for accused also raised contention to say that PW5 & PW6 were present in CBI office even prior to registration of FIR, which shows that everything was pre-determined. To appreciate such contention, it has to be understood that how independent witnesses are arranged by CBI, so as to join them in any proceedings. Since, on receipt of any complaint against any public servant indulging into corrupt practices, CBI officers may need to act urgently or immediately, therefore, as part of routine practice, requisition is made to different public sector offices, so as to send some official to CBI office. These requisitions are normally sent to Vigilance Department of such offices and the concerned office sends some official to CBI office. These officials from other offices report to duty officer in CBI office, thereafter, verification officer or trap laying officer of any case makes his requisition for independent witness, then such official is sent to that particular verification officer or trap laying officer. Accordingly, that independent witness is joined in a particular verification proceedings or trap proceedings. If it is expected that after deciding to lay a trap or to go for a verification proceedings in a Page 46 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 case, the concerned CBI officer should make requisition of independent witness from different offices, then such expectation may frustrate the urgency or requirement to act immediately because, it will be a time taking process that an official is requisitioned from a different office. After receiving such requisition, a particular official is chosen by that office and thereafter, that official is communicated/instructed to report to CBI office. By the time all these things happen and such official reaches the CBI office, there is possibility of being late for conducting verification proceedings or trap proceedings, as the case may be. Keeping in view the time constraint the independent witnesses are requisitioned generally to report to CBI office and as per requirement, a particular official is joined as independent witness in a particular proceeding. Therefore, it is not necessary that requisition for an independent witness shall be sent only after registration of a case to an office. If I appreciate such requirement of CBI, then even if PW5 & PW6 reached CBI office prior to registration of FIR in this case, I find that this fact does not create any kind of suspicion against the trap proceedings conducted in this case. Therefore, this contention of defence cannot be sustained. 57 Another argument was raised by defence that there is no testimony regarding handing over of DVR and seal by PW3 to PW5, though, verification memo mentions so. However, it is not the case that there is no statement at all regarding handing over of DVR. PW3 did depose about receiving DVR from CBI officer after memory card was sealed in an envelope and thereafter handing over that DVR to Page 47 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 another witness (referring to PW5/Ranjeet). Even PW4 deposed that PW3 had to go and PW3 handed over DVR and memory card to Ranjeet Singh (PW5). As per PW8/verification officer, DVR and the seal with which envelope of memory card was sealed and which was used also on verification memo for putting seal mark on the same using ink and lak, were handed over to Abhishek/PW3 with direction to hand over the same as per instructions given by new officer. On the other hand, PW5/Sh. Ranjeet Kumar did not say anything about receiving DVR or seal and even ld. PP did not put such question to him in the cross-examination conducted by him, because this witness had kept mum over some facts and had resiled over certain facts as compared to his previous statement. However, it has to be appreciated that forgetting or committing error is part of human nature and therefore, such omission on the part of PP to put such question before PW5 could be because of forgetting this fact. Testimony of one independent witness i.e. PW3 that he did hand over the DVR to PW5 cannot be rejected without sufficient reasons. In fact, the TLO/PW10 also mentioned in his testimony that Mr. Ranjeet/PW5 handed over a DVR and seal of CBI used during verification memo, to him and therefore, he did not take any DVR from the caretaker. On the basis of such testimony on the record, it appears that PW4 i.e. the complainant, though remembered about handing over two items to PW3 by verification officer/PW8, but he could not tell correct descriptions of those items and therefore, he went on to say that DVR and memory card was handed over to Page 48 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 Abhishek/PW3 and that PW3 handed over DVR and memory card to PW5. Probably this witness mistook the seal as memory card. It is not an easy job to recount each and every minute fact and depose the same before the court correctly. Even PW13 deposed that before treatment of GC notes and demonstration being given by him, Abhishek/PW3 handed over DVR and seal to Ranjeet/PW5 and thereafter, TLO/PW10 took the same from PW5. Thus, omission of such fact in the testimony of PW5 cannot mean that no such proceeding had taken place.
58 Some minor discrepancies, therefore, is not treated to be fatal for the case of prosecution. Time and again Supreme Court had been making such observations and a few of them are as follows: 59 In State of Rajasthan Vs. Smt. Kalki and Another, (1981) 2 SCC 752 (FB), Supreme court observed that :-
"In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. Those discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
60 In State of U.P. Vs. M.K. Anthony, AIR 1985 SC 48, Supreme Court held that :-
"While appreciating the evidence of a witness, the Page 49 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, draw- backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial Page 50 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer."
Same observations were made by Supreme Court in State Vs. Saravanan & Anr. AIR 2009 SC 152.
61 In Vidhya Rani and Madan Lal Vs. State (Delhi Admn.), Criminal Appeal Nos.186 and 385/1997, it was held that :-
"5. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:
a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details.
c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.Page 51 of 114 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018
d) By an large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
e) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the Page 52 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
h) Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important 'probabilities factor' echoes in favour of the version narrated by the witnesses."
62 In view of above-mentioned legal principles, I do not find some discrepancies appearing regarding estimation of time given by different witnesses, to be such material discrepancy which may have the effect to discredit the overall testimony of all these witnesses. Therefore, such argument of defence cannot be sustained to doubt verification proceedings or verification memo. RECORDED CONVERSATIONS:-
63 As already observed herein above by me, prosecution has come up with evidence in respect of demand in the form of testimony of PW4 and the recorded conversations. PW4 did depose about such demand initially being made by accused and I have already discussed such evidence herein above. PW4 also deposed that during verification proceedings when he met accused, he told accused that he did not have arrangement of money. However, accused told PW4 that since his son was involved in the case, Page 53 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 therefore, he had to make arrangement of money. PW4 further testified that he told accused that he could arrange Rs. 1 lac only. Accused asked about remaining amount and then PW4 told accused that after release of his son on bail, PW4 would arrange some more amount in the sum of Rs. 50,000/-. Thereafter, accused told PW4 that his son would be in police station in the night and accused asked PW4 to come alongwith food for his son, so as to give it to him and at the same time to make payment to him. Admittedly, PW3 or PW8 had not heard such conversation. However, PW3 and PW8 did depose about keeping a DVR with a new memory card in the pocket of PW4 in switch on mode for recording of conversation between PW4 and accused. This conversation was allegedly recorded in the memory card and thereafter, memory card was sealed in an envelope. 64 Defence has disputed the alleged conversation and has challenged the evidence of recorded conversation. Apart from this recorded conversation, prosecution also proved another recorded conversation which allegedly took place between accused and PW4 during trap proceedings. The recorded conversations during verification proceedings were allegedly contained in memory card Q1 and recorded conversations during trap proceedings were allegedly contained in memory card Q2. Thereafter, as per case of prosecution, specimen voice of accused was voluntarily given by him and same was recorded in another new memory card i.e. S1 at PS Khajuri Khas itself. All these memory cards were sealed in separate envelopes and all these memory cards alongwith the DVR were sent Page 54 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 to CFSL, New Delhi for examination. PW7/Sh. Deepak Kanwar was the expert/scientist of the lab, who had examined the recorded conversations and the specimen voice of accused and he proved his report as Ex. PW7/A. 65 The first attack from the side of defence is in the form of contention that the report given by PW7 is inadmissible in evidence and therefore, it deserves no credence. This argument is based on the basis of provisions u/s 79 A of Information Technology Act. I have already mentioned the defence arguments made herein above. Therefore, the first issue for decision is basically a legal issue, so as to decide that in absence of notification u/s 79 A of Information Technology Act, whether report given by an expert from CFSL, New Delhi regarding examination of electronic evidence, would be admissible in evidence?
66 In order to look for an answer to aforesaid legal issue, I would refer to the relevant law provisions in this regard. Section 79 A of I.T. Act was enacted in the year 2000, which came into force w.e.f. 17.10.2000. This provision provides that the Central Government may for the purposes of providing expert opinion on electronic form evidence, specify, by notification, any department, body or agency as an examiner of electronic evidence.
67 Ld. defence counsel submitted that the term 'may' used in the aforesaid provision should be treated as 'shall' and hence, notification is mandatory for an agency to be eligible to examine electronic evidence. In this respect, ld. defence counsel relied upon the Page 55 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 judgment passed in the cases of State of Gujarat v. Utility Users Welfare Association (supra) and Sarla Goyal v. Kishan Chand (supra). However, in the case of Utility Users, Supreme Court was dealing with provisions of The Electricity Act, 2003 regarding appointment of the Chairperson in Central and State Regulatory Commissions. The question involved was that whether it is mandatory to have a judicial mind presiding over these commissions in the form of a judge. Apparently, there is no match between legal provision under consideration before Supreme Court in aforesaid case and Section 79 A I.T. Act. Therefore, the observations made in that case cannot become applicable to legal issue involved herein. Similarly, in the case of Sarla Goyal, Supreme Court was dealing with provision u/s 27 of Delhi Rent Control Act, 1958 regarding duty of a tenant to deposit rent, if same was refused by the landlord. That provision was also having different objective and any finding given in respect of that provision cannot become applicable in the present case.
68 The provision u/s 79 A I.T. Act or provision u/s 45 A Evidence Act do not say that in absence of such notification, opinion based on scientific examination given by a person well versed or skilled in such science, cannot be admissible in evidence. Unless such bar is created in law, it cannot be read as an extension of section 79 A of I.T. Act that the report given by any other body/lab shall be inadmissible in evidence. Therefore, I do not find any occasion to go into the question of intention of legislature while using the term 'may' Page 56 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 in Section 79 A. 69 Madras High Court in the case of K. Ramajayam v. Inspector of Police, Chennai reported in 2016 Cr.LJ 1542, facing similar kind of situation observed that-
"It is axiomatic that the opinion of an expert, which is relevant under Section 45 of the Indian Evidence Act, 1872, when accepted by the Court graduates into the opinion of the Court. The Central Government has not yet issued notification under Section 79A of the Information Technology Act, 2000 on account of which Section 45A of the Indian Evidence Act, 1872 remains mute. Therefore, the methods evolved by Kala (PW-
23) and Pushparani (PW-24), Scientific Officers of the Tamil Nadu Forensic Sciences Department to analyze and give their opinions on the electronic data, are correct and cannot be faulted."
70 It is worth to mention here that the Information Technology Act was enacted in the year 2000, after much advancement in the use of electronic data, transactions being carried out by means of electronic data and other means of electronic communication. It was so enacted to provide safeguards necessary for legal recognition to such transactions. However, recorded conversations were being produced during criminal trial of a case since long and much prior to 2000 and same were duly relied upon by the courts, subject to certain precautionary measures, for the purpose of giving decision in such case.
71 It is also worth to be seen that section 293 Cr.P.C. refers to certain government scientific experts and provides that report of such Page 57 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 experts may be used as evidence even without calling that expert before the court. Thus, report of these certain experts were given special status to become admissible without formally calling such expert to prove the same. In the year 2005, legislature added one more category in section 293 (4) Cr.P.C. to include any other government scientific expert specified by notification by the Central Government for this purpose. This addition took effect from 23.06.2006. Thereafter, w.e.f. 27.10.2009, legislature again came up with section 45 A Evidence Act, to say that opinion of examiner of electronic evidence referred in Section 79 A of I.T. Act shall be a relevant fact in respect of any information stored in any computer resource or any other electronic devise. Thus, it can be seen that legislature had been taking steps one after another for the purpose of due legal recognition of electronic evidence in formal manner. 72 It cannot be said that prior to 2009, opinion of any scientific expert over recorded conversations was waste in any court proceedings. Section 45 of Evidence Act in itself is enabling provision to accept opinion of such expert in the court proceedings. Obviously, the courts over the passage of time, have evolved certain precautionary measures for the purpose of appreciation of any such opinion. May be notification u/s 79 A of I.T. Act further lay down a basis to accept report of such notified expert under Section 293(4) (g) Cr.P.C., without formal proof of the same. It is also to be appreciated that other experts viz. handwriting experts have to prove their opinion or report before the court, after appearing as witness. Their Page 58 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 opinion/reports are evaluated on merits, rather than being rejected on the grounds that they are not notified experts. 73 In the present case, PW7 examined the contents of Q1 & Q2 and compared the same with contents of S1. He adopted prevalent scientific instrument and method of audiography and spectrography. His opinion/report is based on scientific examination, rather than personal opinion. Therefore, same would be admissible in evidence. 74 Now, I shall deal with the question of credibility of the evidence of recorded conversations. As already mentioned herein above, ld. defence counsel disputed recorded specimen voice of accused. He submitted that no witness has deposed about specimen voice being recorded in his presence. He also alleged that all these recordings are tampered and fabricated recordings, which do not contain voice of accused.
75 I had personally heard recordings in all three memory cards i.e. Q1, Q2 & S1. The transcript of recorded conversation in memory Q1 was proved as Ex. PW3/A. PW3 deposed that on 26.04.18, after reaching back the CBI office, CBI officer took out memory card from DVR and copied its contents in a laptop. Thereafter, the recorded conversation was played in the laptop before all of them and the memory card was again put back in its cover and the cover was signed by him, PW4 and CBI officer (PW8). The cover was thereafter, put in a brown envelope, which was sealed and the envelope was also signed by them. Later on, PW3 again visited CBI office on 16.05.18, when the recorded conversation was again played before him, so as to confirm Page 59 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 if it was the same conversation which was recorded on 26.04.18. PW3 confirmed after hearing the conversation that it was the same conversation. He matched the transcript, which was already prepared by the CBI officer with the recorded conversation and thereafter, he signed the transcript as well. Same transcript is Ex. PW3/A. 76 When PW4 appeared before this court, the recorded conversations from memory card Q1 were again played before him and after hearing the same, he also affirmed that it was the same conversation which had taken place between him and the accused in Kakardooma Court. PW4 further deposed that he had also confirmed correctness of transcript Ex. PW3/A. 77 Even I had compared the transcript Ex. PW3/A with the recorded conversations contained in memory card Q1, which is also Ex. Article/PW4/1. The transcript was found in accordance with the audible part of recorded voices and conversations. The relevant file of conversation between PW4 and the accused is the third file. The first file relates to introductory voice of PW3. PW3, PW4 & PW8 did depose about introductory voice of PW3 being recorded in the memory card. First file signifies to the same. The initial portion of third file shows that complainant called the accused and the accused asked him about his whereabouts. The relevant part of conversation is as follows:-
Accused - Kahan ho?
PW4 - Main to upper hi aapka intejaar kar raha hoon, itni der se. Accused - Aaja 68 number main aajao 68 number main Page 60 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 PW4 - 68 number kaunsa floor hai?
Accused - ........
PW4 - 6th floor pe ya 4th floor men.
Accused - 4th pe.
PW4 - Aaraha hoon ji.
The aforesaid conversation corroborates the testimony of PW4 that in Karkardooma Court, he had telephonic conversation with accused, so as to ask him about his location and accused asked him to come on 4th floor near Court no. 68.
78 The subsequent part of this audio file refers to alleged talk between complainant/PW4 and accused. Its long talk. However, I shall refer to some relevant part of conversation, which will exemplify the nature of talk qua the allegations against the accused. PW4 - Ab kaise hoga batao, aapko pata hai meri gunjaise hai nahin, nahin main to abhi tak bachhe se jyada koi do char lakh rupiye koi bachhe se jyada pyare hain, bachhe se jyada pyrare hain kya do char lakh rupiye.
Accused - ......ladki ka baap bhi pada hai PW4 - ladki ka.
Accused - ladki aayi hai na bayan ke liye.
PW4 - aaj bayan honge uske.
Accused - Bayan honge haan.
PW4 - dekhlo aap. Jaise bhi ho theek se karwana jaise bhi ho, jaise aap kahoge waise kar denge.
Accused - theek hai.
Page 61 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 PW4 - .........
Accused - mil lena phir shaam ko.
PW4 - nahin saam ko matlab maine wyavastha kari hai, thodi bahut ki.
Accused - Oon PW4 - thodi bahut ki wyavastha hui hai Accused - kya kah raha hai tu.
PW4 - Oon Accused - Kitni hui hai?
PW4 - 3-4 ki to nahin, matlab jo hai na ye maan ke chalo ki lakh rupiye ye neeche neeche ki ho jayegi, ek lakh tak ki to main karwa doon ladka bahar aa jayega mera, pata hai aapko dekho begunah hai ladka mera, phasaya ja raha hai usse ye to aapko bhi pata hai Accused - dekho bahar aane ke liye bahar to chodenge judge sahab hi.
PW4 - hain Accused - bahar to nikalenge judge sahab hi, koi jamanat de na de aab main kya karoon wo to judge sahab ke upar baat hai. Per main yeh kah raha hoon niptwa ke kamjor kar denge baad main jab sunwai hogi mukadme ki us samay bari ho jayega wo.
PW4 - Nahin to matlab lakh rupiye bhi de ke usme bhi matlab jamanat wagahra nahin hogi.
.........................
Accused - kyonki judge sahab denge jamanat to unke haath main hoti hai wo de de wo turant bhi de de n de to 6 mahine bhi na de, Page 62 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 main to case ki bata raha hoon tumeh.
PW4 - to case phir aap jo hain allegation hata do ge. Accused - haan allegation hat jainge isme. ..................................
PW4 - ye to aapko bhi pata hai jhooti laga rakhi hai allegation Accused - isme koi lena dena nahi hai hata denge. PW4 - nahi ye toh aapko bhi pata hai na ye jhoothe allegation laga rakhe hain sare kisi bhi tarah se karke.
Accused - main bata raha hun saboot hote hain ke bhai ye idhar bhi sab jod denge wo laga denge wo hata denge matlab.......... saboot nahi lagayenge baki, jo ladki keh rahi hai bas wahi rahega baaki apni taraf se kuchh nahi jodenge hai naa.
PW4 - achha Accused - samajh gaye bayan jode dete hain na jo bhi ki haan ji mere saamne hua tha challan......... koi gawah nahi rahega. ladki- ladki gawah rahegi, ladki ki gawahi pe muqadma nahi chalta ....................................... Accused - ........mehnat karenge bhaga daudi karenge saare saboot leke aayenge bhayi jitne bhi check kar rahe hain wo dekhayenge bhayi asli hai ye inhone khud hin diye hain usi cheez ke to paise hain nahin toh hame kya jarurat hai thik hai ji kare jo le liye le liye isne. PW4 - a Accused - isi cheez ki toh mehnat karni hai PW4 - ........
Accused - mehnat mehnat karenge....... wagerah layenge usko Page 63 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 dhundhwaenge dekhenge PW4 - pata chale lakh rupaye deke bhi hamara jo hai pind naa chhutey hum aise ke aise hi fasey rahen.
Accused - nahin pehle bata raha hun muqadama kamjor........ PW4 - a Accused - toh bhaiya ladki ladki ke bayan reh jayenge isme PW4 - haan Accused - baaki kuchh nahi bachega muqadme mey PW4 - baaki kuchh nahi bachega Accused - ladki ladki ke bayan rahenge aur kisi ke bayan nahi lenge 1-2 bayan tumhare favour me daal denge ......................................................................... PW4 - khud hi fasegi wo Accused - haan khud fasegi PW4 - wo khud fas jayegi Accused - tumhara ladka bari ho jayega, jyada din nahi chalna PW4 - aur toh koi kharcha nahi karna padega Accused - na na aur koi kharcha nahi hai ....................................................................... PW4 - ab aapko ab kya dena hai Accused - mujhe toh jo hai wo dedo PW4 - kitne Accused - keh toh rahe ho tum yaar ek toh keh hi rahe ho PW4 - ayn Accused - ek toh tum keh hi rahe ho Page 64 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 PW4 - haan aur toh kuchh Accused - aur thoda aur thoda karlo PW4 - ayn Accused - aur thoda kar lo yaar PW4 - wo toh aapko pata hai kaise karke wyavastha kari hai Accused - main yaar akela thoda rakhunga saare PW4 - haan Accused - mujhe bhi toh baatne padte hain sipahi aate hain saath me.........upar bhi jaatey hain muqadama dekhte hi SHO bhi dekhega sab dekhenge isko kya hai DCP tak baat jaa rahi hai, DCP ko toh nahi jaatey par apna toh thaane me toh batenge na baaki sare....... PW4 - haan Accused - ......................sabko batate firoge toh mamla gadbad ho jayega qyonki paise ka mamla aisa hota hai sab darte hain. PW4 - ayn Accused - paise se sab darte hain PW4 - nahi hai toh hum nirdosh ye toh aapko bhi pata hai dekho Accused - meri baat sun rahe ho ke nahi sun rahe PW4 - ye toh khamkha ki garibi mey aata gila wali baat hai. Accused - ab pad ri tumhare par bhagatni toh padegi bhai tumhe ya nahi bhugatni padegi, samajh lena bhai tumhare paise ye bimari me kharch ho gaye PW4 - agar koi nirdosh aadmi aise garib aadmi bilkul ho hai aur toh fans jaye wo toh mar hi jayega fir Accused - arey kya keh rahe hain martey hain bahut martey hain Page 65 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 wahan jaake dekh court mey PW4 - ayn Accused - jail me jaake dekho 80-90 partishat fanse pade hain, muljim to bahar nikal jaate hain Salmaan Khaan ka bta kya bigad gya.
PW4 - haan .......................................... Accused - koshish karenge tumhare jamanat ki bhi koshish karenge aisi baat nahi hai jamanat me bhi hum jyada bolenge nahin jo bhai tumhara waqil kahega wahi karenge jyada usme - thik hai PW4 - matlab jo jayaj ho wo bata do wo le ke aayenge Accused - nahi bata diya maine tumhe PW4 - ayn Accused - bata diya maine tumhe jyada nahi puchha karte PW4 - ab Accused - maine tumhare dekho pehle hin bahut kam kar diye PW4 - ab kitne dene hain Accused - kitne bole they maine PW4 - nahi abhi toh aap keh rahe they naa dedh ke karib keh rahe they dedh laakh rupaye Accused - haan ji PW4 - ayn Accused - .................
PW4 - toh dedh to nahi hai ek laakh rupaye ke karib wyavastha saari milake ke hui hai milake hui hai Page 66 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 Accused - baaki aur PW4 - baaki ke toh ye ladka aa jayega bahar tab dekhenge Accused - jamanat pe de dena baaki PW4 - haan baaki jamanat pe de denge Accused - thik hai PW4 - fir kiske ke paas kahan par dun Accused - yahin Khajoori thaane me hi hun main yahin bhijwa dena PW4 - ayn Accused - Khajoori bhijwa dena thaane me hin PW4 - toh aap miloge wahan par Accused - han han main hi milunga thik hai PW4 - kis time fir aap phone kar dena mujhe yaa main phone kar dun Accused - ladka lene toh aayega na shaam ko chhutega aaj PW4 - haan Accused - toh ladka le jayenge tum udhar se lete aana khana wana lete aana ladke ke liye khana wana khila dena ladke ko PW4 - haan Accused - aa jaana 10 baje PW4 - ................................. Accused - bhayi main aaunga 7 baje aaunga PW4 - 7 baje .......................... paise kahan laun Accused - wahin le aana.
79 If I recount the testimony of PW4 and compare it with aforesaid conversation, then in substance, I find that the contents of their Page 67 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 conversation have been consistently projected before the court by PW4. In the aforesaid transcription one can find that PW4 was asked to meet in the evening by the accused and PW4 informed him that he had made some arrangement. Accused asked how much and then PW4 explained that he could not arrange 3-4, but he assured to arrange upto Rs. 1 lac. The purpose of this money transaction is also explicit from the conversation because accused talked about ensuring that case was made weak against son of PW4 and on that basis he represented that son of PW4 could be released. Accused went on to assure to mollify the allegations as well as evidence against son of PW4. He also assured to put one or two favorable statement for son of PW4 in the case file and to see that prosecutrix herself was trapped in the case and son of PW4 was acquitted. PW4 asked the accused as to how much was to be paid to him and accused even bargained on this aspect, saying that one was already conceded by PW4 and he should make some more payment. Accused went on to explain that he himself was not to keep all the amount as he was supposed to pay share of other officials like accompanying constable and SHO. When PW4 bargained to say that he could arrange only Rs. 1 lac, against demand of accused, then accused did ask for remaining amount and said that after release on bail, PW4 should pay the remaining amount. He also asked to send money at PS Khajuri saying that he would meet there. He also told PW4 that his son would come to PS that night then he should bring food for his son and asked him to come around 10 p.m. and to bring Page 68 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 money at that place itself.
80 It has to be appreciated that a person cannot recount and narrate each and every sentence of a conversation taken place in the past, during his deposition before the court. The recorded conversations in the present case, are therefore, such piece of evidence so as to show as to what was the complete and exact talk held between the parties, during their conversation. Therefore, it cannot be expected that in the testimony before the court, PW4 could have narrated his conversation with accused in exactly same manner, as it would have happened. But as already observed herein above, the substantive part of statement given by PW4 before the court finds due support from the contents of aforesaid recorded conversation. CREDIBILITY OF RECORDED CONVERSATION AND REPORT GIVEN BY EXPERT:-
81 Now, the question is that whether the recorded conversation actually contained the voice of accused and whether the recorded conversations can be relied upon by this court. Supreme Court in the case of Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611 did lay down certain precautionary guidelines for appreciation of recorded conversations, which are as follows:-
1.1 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 Page 69 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
1.2 The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence- direct or circumstantial.
1.3 Every possibility of tampering with or erasure of a part of a tape- recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
1.4 The statement must be relevant according to the rules of the Evidence Act.
1.5 The recorded cassette must be carefully sealed and kept in safe or official custody.
The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances." 82 As far as identification of voice of the speakers, is concerned, I have already mentioned that PW4 heard the recordings before the court as well and confirmed that the recordings were pertaining to his conversations with the accused. It has to be appreciated that PW4 was himself one of the speakers and participant to these conversations. Therefore, his evidence to identify and confirm the voice of accused is very significant. Moreover, the testimony of other witnesses viz. PW3 and PW8, are consistent with the chronology of events leading to conversation between PW4 and accused in the Page 70 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 Karkardooma Court and advance arrangement made for recording of such conversations. PW3, PW4 and PW8 also described the precautionary measures taken by PW8, to establish the blankness of the memory card before its use. Introductory voice of PW3 was recorded in memory card Q1 and introductory voice of PW5 & PW6 were recorded in memory card Q2, to rule out the possibility of use of a new memory card subsequently with a manipulated recording. 83 The memory cards containing the recorded conversations were sealed after obtaining signature of witnesses. I have already referred to such testimony of PW3 & PW4 in this respect. PW3, PW4 as well as PW8 did identify their signatures before the court without any dispute from the defence, as appearing on cover of memory card as well as on the envelope in which the memory card was sealed as pertaining to memory card Q1.
84 Similarly, PW6 and PW10 identified their signatures on the cover of memory card Q2 and the envelop wherein it was sealed. Unfortunately, these articles were not put to PW5, therefore, PW5 could not get an opportunity to identify his signatures on the same. PW5 and PW6 did not depose about recording of their introductory voices in memory card Q2. However, it can be treated as a lapse on the part of prosecutor to omit to put such questions to these witnesses. But, for that reason, other evidence of prosecution cannot be ignored. PW5 & PW6 were layman, who cannot be assumed to be well aware of requirement of law. Moreover, it cannot be forgotten that these witnesses deposed about a long chain of events and it was Page 71 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 much probable to miss or to forget some happenings, while recounting the whole event before the court. It is not an easy job for even an expert to recount each and every chain/fact of an event. 85 PW8, PW10 and PW13 were officials of CBI. In their testimonies, they deposed that introductory voices of both independent witnesses (PW5 & PW6) were recorded in memory card Q2 and thereafter, DVR was switched off. This DVR was also used to record the telephonic conversation between PW4 and accused, in the presence of PW5 & PW6. Both these witnesses vouched for such fact in their deposition. PW6 though denied that recorded conversations were heard by him in the CBI office, but he heard the recorded conversations in memory card Q2 before the court and confirmed that the recordings of telephonic conversations were the same as per conversations taken place in his presence, between PW4 and accused. Even PW4 heard such recordings from memory card Q2 before the court and vouched that same conversations had taken place between him and accused on telephone, while the trap team was waiting at some distance from PS Khajuri Khas. PW8, PW10 and PW13 also deposed in the same line. Therefore, it is well established that while trap team was waiting at some distance from PS Khajuri Khas, three telephone calls were made by PW4 on the mobile phone of accused, so as to confirm arrival of son of PW4 and accused in the police station. CDRs of mobile phone of PW4 and accused i.e ExPW2/A and ExPW2/C respectively, also corroborate such calls exchanged between them. These CDRs show that three Page 72 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 conversations took place between mobile phones of PW4 and accused at 11.06 pm on 26-04-2018 for 78 seconds, 00.09 am on 27-04-2018 for 26 seconds and at 1.29 am on 27-04-2018 for 36 seconds. All there calls were made from mobile phone of PW4. The given mobile numbers were used by PW4 and accused and accused has not raised any dispute to such fact.
86 PW4, PW5, PW6, PW8, PW10 & PW13 have given a consistent account of DVR with a new memory card Q2 being put in the pocket of pant of PW4 in switched on mode, when PW4 finally proceeded to PS from the place where vehicles of trap team were parked. In the testimony of PW4, PW5 and PW6, a reference has also come regarding another friend of PW4 coming there on a scooty, though PW6 did not talk about scooty and used the term bike on which PW4, PW5 and one other person proceeded towards police station. However, cross-examination of PW4 by defence is explicit in this respect wherein he deposed that his friend Dinesh had come on scooty and he alongwith PW5 and Dinesh had gone to PS on scooty. While hearing the last file of recording in memory card Q2, I could hear sound of some vehicle like scooter being there in the initial part, which continued for around 1 minute 40 seconds. This sound point out to the movement of PW4 on a scooty while going to the PS and thus, such fact stands corroborated and shows that PW4 had not given a false account of such fact. Since, question has been raised against credibility of recordings, therefore, such sound appearing in the recording becomes important to show that the things happened in Page 73 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 the same manner as deposed by PW4 and were recorded accordingly in this memory card. Even PW5 during his cross- examination deposed that after voice recorder was put in the pocket of PW4, he was asked by CBI officer to go alongwith complainant and his friend on a scooty. PW4 and PW5 have deposed about entering the police station together. Both of them deposed that they had gone inside the building of PS. PW4 deposed that he had talked to his son, but other persons did not talk to his son. His son was shifted in another cabin and PW5 had left him prior to that time. Even PW5 deposed that he had automatically separated himself from PW4 and he had come back after around 2 minutes to stand on the gate of that building. PW5 also deposed that son of complainant was taken out from the lockup and was made to sit in the adjacent cabin. It is worth to appreciate here that all such descriptions were given by both these witnesses during their cross-examination by defence counsel. Therefore, it cannot be said that all such facts deposed by them were tutored to them. Rather, consistency over such situation show that these persons had given true account of facts with little deviations. PW4 deposed that he went to accused. Location of accused was outside the building. PW5 also deposed that accused and PW4 met and had conversations. In fact, defence has not disputed the fact that PW4 actually met accused in the PS. The defence has argued that no conversation of demand and acceptance took place, rather PW4 tried to put the money in the pocket of accused, which was pushed off by the accused and money had fallen on the ground. However, Page 74 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 the last audio file in memory card Q2 supports the description of event as deposed by PW4 and PW5. Both these witnesses vouched for conversations between PW4 and accused and it is so found recorded in the memory card Q2 as well. It is worth to mention here that the recording in the last file of memory card Q2 does not have clear audio consistently. Though, it does have sounds signifying the sound of walking, multiple voices coming in the background, opening of iron gate (signifying opening of lockup). The conversation between PW4 and accused as noted down in the transcript Ex. PW4/E is the reproduction of audible voices only. This is well probable situation that all the voices could not be recorded clearly by DVR. However, that does not mean that the clear audible voices in the recordings are liable to be ignored.
87 The aforesaid recordings in memory card Q1 and memory card Q2 were compared with specimen voice of accused taken in memory card S1, by PW7. In respect of specimen voice of the accused as claimed by ld. defence counsel, PW4, PW5 and PW6 did not say anything. Though, as per prosecution the specimen voice of accused was recorded after conclusion of trap proceedings in PS Khajuri Khas itself. However, once again I find that omission of any particular statement regarding this fact in the testimony of aforesaid three witnesses, was on account of lapse on the part of prosecutor, who neither put such questions to these witnesses, nor put any such suggestion. As already observed by me, it is not necessary for all the witnesses to recollect and depose every fact. In such situation it Page 75 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 remains the duty of the prosecutor to put specific question if any particular fact is not deposed by the witness and in case, he denies existence of such fact, then prosecutor has the liberty to cross- examine the witness as well. Thus, it was more or less on account of omission on the part of prosecutor to seek any answer in respect of such fact. However, other witnesses i.e. PW8, PW10 and PW13, who were officers of CBI did depose about recording specimen voice of accused at PS Khajuri Khas itself in a new memory card i.e. S1. The memory card S1 was also sealed in an envelope. PW10 had identified his signature on this envelope. I will now refer to the conditions in which the memory cards were produced before the court.
88 Memory card Q1 was produced before the court during examination of PW3/Sh. Abhishek Kumar for the first time. It was produced in a sealed parcel having seal of DKT PSO (PHY) CFSL CBI NEW DELHI, which was containing a brown envelope, sealed with the seal of 77/2017 ACB ND CBI. PW3 identified his signatures on this envelope and proved the same as Ex. ARTICLE/PW3/1. PW3 further identified his signature at point X on the cover of memory card and proved the same as Ex. ARTICLE/PW3/2. He also identified his signature on the plastic cover of memory card and proved the same as Ex. ARTICLE/PW3/3.
89 Similarly, memory card Q2 was first of all produced before the court during examination of PW4/Sh. Deepak Kumar. The memory card was produced in a sealed parcel having seal of DKT PSO (PHY) Page 76 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 CFSL CBI NEW DELHI, from which a brown envelope, sealed with the seal of 77/2017 ACB ND CBI was taken out. During examination of PW7/Sh. Deepak Kumar Tanwar, one parcel with CFSL endorsement CFSL-2018/P-536 PARCEL/Exhibit 'S-1' was produced. This parcel was found sealed with seal of DKT PSO(PHY) CFSL CBI N.DELHI. Same was opened and a brown envelope was taken out from the same. The brown colour envelope contained a memory card in cover, which is Ex. Article/PW7/4. The plastic cover is Ex. Article/PW7/5. On memory card mark S-1 was written. Memory card S1 is Ex. Article/PW7/6.
90 The seal of DKT... as appearing on the main parcel belonged to PW7, who had examined these memory cards in CFSL, New Delhi. PW7 deposed that he had received 4 sealed parcels marked as Q1, Q2, S1 and DVR and all these parcels were sealed with the seal of C.B.I.A.C.B N.D.77/2017. This was the seal which was put by CBI officers on the envelope of 3 memory cards and that seal was finally handed over to PW5, who at the time of appearing before the court produced the same. Thus, in absence of any such material appearing on the record, it cannot be assumed that the envelopes of aforesaid memory cards were sealed later on by CBI officer, after manipulating the contents of memory cards. Therefore, I do not find any reason to suspect the integrity of aforesaid three memory cards. 91 PW7 in his report Ex. PW7/A recorded that the audio file of recorded conversation was given mark as Q1 (1) and he had picked some common clearly audible sentences/words from that file for the Page 77 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 purpose of voice spectographic analysis alongwith similar words taken from specimen voice of accused in memory card S1. Similarly, he had mentioned that he picked up clearly audible utterances from the last audio file in memory card Q2 and similar words from specimen voice of the accused from memory card S1 for voice spectographic analysis. The three audio files in Q2 relating to telephonic conversation did not have common words as compared to specimen voice of accused and therefore, the utterances in these three audio files could not be considered for spectographic examination. PW7 conducted two types of examination. The one was auditory examination to analyse their linguistic and phonetic features. Another was voice spectographic examination to analyse formants, formant frequencies distribution, intonation pattern and other general visual features in voice grams. On the basis of auditory examination, he concluded that all the questioned voices were similar to the specimen voice of the accused. On the basis of voice spectographic examination, he concluded that the questioned voices were the probable voice of accused as per his specimen voice contained in memory card S1. This witness had also examined the DVR, which was used during the verification and trap proceedings and he gave opinion that the questioned recordings as well as specimen recordings could be recorded in that DVR. He also reported that the DVR did not contain any recording. It is worth to mention here that this DVR was also sealed in an envelope as per testimony of aforesaid witnesses, in PS Khajuri Khas itself.
Page 78 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 92 In his cross-examination PW7 deposed that the term probable is used in case of positive identification when more than 90 % of similarities are found between questioned and specimen voice samples. He further deposed that it was not possible to edit any recorded conversation in the DVR itself. Though, it could be possible when the storage media is connected to some other media. He was asked about a book written by Hary Hollin and Oscar Toshi. In this book author has written about possibility of error of 30 % in respect of voice identification opinion. This witness deposed that the book was written long back ago and at present there is much advancement in the technology and the instruments, therefore, there cannot be error @ of 30 %. He was also asked about need for mixing questioned voice with unknown voices alongwith specimen voice. This witness deposed that in this case, there were two voices in the recorded conversation, out of which one was unknown voice. He further deposed that in the examination basically properties of questioned voice and properties of specimen voice are matched and opinion is given on the basis of the same. He also produced his office file containing transcript of recorded conversations, wherein he had made his notes/writing works.
93 Defence counsel had emphasized upon mixing of voices for voice identification. However, it has to be seen that the examination was conducted using scientific method and scientific instruments. When the voice identification was done through some person on the basis of his own memory and skill to identify, the requirement of mixing Page 79 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 specimen voice with unknown voice had a purpose i.e. to rule out tutored opinion being given by such person. However, when such examination is conducted using scientific instrument and technology, then there is no relevance of such requirement. Moreover, the analysis has to be done on the basis of common words being picked from the questioned voice and the specimen voice. For this process the transcript of the conversation becomes helpful and use thereof cannot be objected to.
94 In the case of Sudhir Chaudhary v. State (NCT of Delhi), AIR 2016 SC 3772, on the basis of such objections taken by accused, Supreme Court observed that process of drawing voice sample should be fair and at the same time, it was also observed that "we do not find substance in these submissions that the text which is to be read by the appellants in the course of drawing their voice samples, should contain no part of the inculpatory words, which are a part of the disputed conversation. A commonality of word is necessary to facilitate a spectrographic examination". The court had invited text from the IO and transcripts of the disputed conversation and had taken a decision to allow spectrography on the basis of text produced by the IO in that case. Thus, Supreme Court in aforesaid case itself recognized the requirement to have similar words in specimen voice as compared to the questioned recorded conversation, for conducting and facilitating spectrographic examination. This requirement was so affirmed by PW7 as well. 95 Defence counsel had raised certain arguments on the basis of Page 80 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 sequence of events narrated by PWs during verification proceedings as well as during trap proceedings. However, I do not find such arguments to be significant for simple reason that a mirror copy of sequence narrated by one witness cannot be expected in the statement of other witnesses. The minor variations in the sequences do not go into the roots of the case or those proceedings. 96 It was also argued that the recorded conversations did not have all the talks between different persons in PS i.e. talk between PW4 and his son etc. However, there is no merit in this contention because, the recorded conversation does contain numerous voices, but transcript of those voices were not prepared for obvious reasons that prosecution did not rely upon those part of conversations which took place between PW4 and his son. I have already mentioned that all the voices were not clear and audible through out the recording, however, the conversation as replicated in the transcripts are part of the recorded conversations. Those portions of recorded conversations are having direct bearing over this case and are therefore, much relevant.
97 I would also point out that the recording in Q1 continued for a minute after completion of talk between PW4 and accused. This supports the testimony of PW4 and PW8 that after conclusion of such talk, when PW4 moved away from that place, then PW8 intercepted him in or around 3rd floor of the building and took him towards a toilet to take away the DVR. Similarly, in memory card Q2 related to trap proceedings, the transcript culminates with the talk between accused Page 81 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 and PW4, but recording continued for substantial time and in such part of recording, one can hear the voices of several persons including the call being made by some person as "aa jao aa jao pakad lo pakad lo". This recording corroborates the testimony of PW5, who deposed that after seeing gesture of PW4 about making payment to accused, he had to say aloud that "paisa le liya aa jao aa jao". This further corroborates the version of all the members of trap team that after such signal being given, accused had started running towards main gate of PS. Only in that situation, "pakdo pakdo" would have been uttered by someone. Besides this, the last portion of recording in memory Q2 also has voice of someone saying that accused was running away and such mutual conversation is also recorded. Even complainant is found to be crying as per recordings after probable apprehension of accused, wherein he had been telling some other person that accused had falsely implicated his son and was demanding Rs. 4 lacs against threat that he would not allow bail for his son. These portions of recordings are not reflected in the transcript, because prosecution wanted to highlight the conversation between PW4 and accused only.
98 Defence counsel had made argument that there is no opinion regarding phone call recordings and regarding absence of tampering of exhibits/recordings. As far as opinion regarding phone call recordings is concerned, the report Ex. PW7/A itself mentions reasons thereof, stating that common clearly audible words were not available in those recordings. This finding of PW7 affirms that PW7 Page 82 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 was not adamant to give a positive report in blind manner, rather, he had actually examined all the audio files diligently to find common audible words and when he was unable to find the same, he reported accordingly. As far as tampering of recording and exhibits is concerned, it is true that no such opinion was sought by IO, nor suo- moto given by PW7. However, I have already discussed the process of sealing all the exhibits and my satisfaction regarding non- tampering of those sealed envelopes. In these circumstances, in absence of any concrete material, it cannot be said that the exhibits were tampered.
99 Ld. defence counsel also made arguments that friend of PW4 namely Dinesh was not produced before the court by prosecution. Similarly, PW4 pointed mentioned that TLO/Insp. Shukla had participated in verification proceedings, but this fact was not mentioned in the verification memo. I find that these arguments are not very impressive. There was no compulsion to examine and produce Mr. Dinesh also before the court. His evidence could have been used for corroboration purpose only and there were other witnesses already available for this purpose. As far as participation of Insp. Shukla/PW10 in verification proceedings is concerned, I find that such testimony of PW4 as relied upon by ld. defence counsel, was an out come of some confusion only. Apparently, PW4 had participated in verification as well as in trap proceedings and there is much scope of getting confused regarding presence of TLO during verification proceedings as well. I do not find any gain for CBI to make Insp.
Page 83 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 Shukla member of verification team and thereafter, again making him TLO by suppressing his participation in verification proceedings. Had Insp. Shukla joined verification proceedings, some other Insp. could have been made TLO by the SP. Therefore, I find no merit in such argument.
100 Similarly, the arguments of defence that absence of fixing amount of Rs. 1 lac in advance prior to verification proceedings is insignificant. Just because there is no reference of meeting of PW4 with his wife near cross-river mall to hand over Rs. 1 lac to PW4, it does not create any hole in the case of prosecution. It is not necessary that each and every minute fact should be recorded and projected before the court. It was sufficient for the prosecution to show the bargain between complainant and the accused and to say that complainant arranged such amount, which was used as trap money. Just because, PW3 & PW8 did not have knowledge of such meeting of PW4 with his wife, doubt cannot be created on the verification proceedings.
101 Ld. defence counsel also argued that there is variation in the evidence as to whom complaint was given by PW4. However, this argument also is not impressive because such fact is not so important as to whom the complaint was actually given i.e. whether the complaint was given to SP/PW11 or to PW8. 102 Ld. defence counsel also raised some arguments on the basis of words used by the witness in their testimony before the court and the words mentioned in the transcript of recorded conversation. However, Page 84 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 such argument is based upon over expectation, because it is not probable to use same words while recounting an event on two different occasion. The variation in the use of words as well as in the sequence of events are bound to take place. 103 Another objection was raised that there is contradiction in the evidence regarding mode of final demand in PS. It was argued that PW4 deposed that demand was made by accused through signal/gesture, but the recovery memo recited that accused asked the complainant to come at the back side of the PS and demanded bribe amount. However, I do not find any contradiction in such part of recovery memo as well as testimony of PW4. Demand may be made through various modes and in all the situations it shall be termed as demand only. Now a days, it is more prevalent to talk either in code words or through gestures, especially when someone is involved in such kind of transactions. That will not mean that there was no demand. Moreover, the part of recovery memo as referred by ld counsel will be hit by Section 162 Cr.P.C., because it is based upon statement given by PW4 before TLO/PW10 and signature of PW4 was obtained on this memo. In State of Rajasthan v. Bhawani 2003 (3) JCC 1343 SC, Supreme Court while dealing with the question of admissibility of site plan signed by witness, made following observations:-
"11. The High Court has extensively relied upon the site plan prepared by the investigating officer for discarding the prosecution case and for this purpose has referred to Page 85 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 the place from where the accused are alleged to have entered the nohara, the place from where they are alleged to have fired upon the deceased and also has drawn an inference that the place wherefrom the accused are alleged to have fired upon the deceased, the shot could not have hit the houses on the eastern side of the nohara. Many things mentioned in the site plan have been noted by the investigating officer on the basis of the statements given by the witnesses. Obviously, the place from where the accused entered the nohara and the place from where they resorted to firing is based upon the statement of the witnesses. These are clearly hit by Section 162 CrPC. What the investigating officer personally saw and noted alone would be admissible. This legal position was explained in Tori Singh v. State of U.P. [AIR 1962 SC 399 : (1962) 1 Cri LJ 469] in the following words: (AIR p. 401, paras 7-8) A rough sketch map prepared by the Sub-Inspector on the basis of statements made to him by witnesses during the course of investigation and showing the place where the deceased was hit and also the places where the witnesses were at the time of the incident would not be admissible in evidence in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Page 86 of 114 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 Inspector that the eyewitnesses told him that the deceased was at such and such place at the time when he was hit. The sketch map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation. Therefore, such marks on the map cannot be used to found any argument as to the improbability of the deceased being hit on that part of the body where he was actually injured, if he was standing at the spot marked on the sketch map."
104 The ratio emerging out of aforesaid observations would apply to any document prepared during investigation of a case by police officer. Recovery memo was also prepared by TLO during investigation of this case. It can be admissible only in respect of those facts, which were recorded by TLO on the basis of his own observations and on the basis of steps taken by him or on the basis of facts based on his personal knowledge. But a portion of the same is based upon the statement given by PW4 before TLO. In that situation such portion of the recovery memo shall not be admissible being hit by Section 162 Cr.P.C. Similarly, site plan Ex. PW5/P1 is also hit by Section 162 Cr.P.C. and cannot be read in evidence. Defence also cannot use Page 87 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 such document for their purposes for want of confrontation of such part with the witness for the purpose of contradicting him. 105 Ld. defence counsel disputed correctness of CDR of accused on the basis of testimony of DW2. DW2 was an official from PS Khajuri Khas, who deposed that she had made various DD entries in the register of that police station on 26.04.18 being DD writer. She further deposed that DD entry no. 112 dated 26.04.18 was written by her and information of this entry was given to accused in PS itself. However, there were some other calls recorded vide DD entry no. 107, 116 and 127 all dated 26.04.18, which were also assigned to the accused and information of these entries were given to accused through telephone. According to DW2, the information would have been given to accused on his mobile no. 9716423870 as this number was recorded in DD Roster Register. She further deposed that when she had given telephonic information to accused, he was not present in the PS and she had used official landline phone of the PS, which could be either 22966851 or 22962735.
106 Ld. counsel submitted that testimony of DW2 is to be given equal importance as given to a prosecution witness. In this respect, he relied upon certain case laws, which have already been mentioned herein above. Ld. counsel further submitted that DW2 proved making calls on the mobile phone of the accused, but these calls are not reflected in the CDR of same number i.e. Ex. PW2/C. Therefore, this CDR is not correct record of calls made or received by aforesaid mobile number of accused.
Page 88 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 107 As per DD no. 107 (part of Ex. DW2/A), at about 8.10 p.m., DW2 was handed over duty of DD writer and one WHC Sunita was assigned duty of W/H/Desk. Apparently, there was no occasion for DW2 to give information of this DD entry to the accused on telephone. DD no. 112 was recorded at 9.20 p.m., regarding an incident of beating at Nehru Vihar, which was assigned to the accused. Thereafter, DD no. 116 was recorded at 9.39 p.m., regarding quarrel at Dayal Pur, which was assigned to accused through telephone. DD no. 127 was recorded at 11.40 p.m., regarding a quarrel at Gali No. 24, Khajuri, which was also assigned to accused through telephone.
108 There cannot be a dispute that defence witness is to be treated at par with prosecution witness. However, the testimony of any such witness has to be scrutinised in the same manner as testimony of any prosecution witness is scrutinised. It is worth to be seen here that accused himself did not enter into the witness box to vouch that he had received any such particular call on his aforesaid mobile phone number. If accused had actually received such call on his aforesaid mobile phone number, then it was not a difficult task for the accused to produce call records of his aforesaid mobile phone number. It is appropriate to mention here that even a customer can have record/list of calls made and received by him on his mobile phone alongwith the bill (if it is postpaid connection). In case of pre-paid connection also, such customer can seek details of all his calls for a particular period. Accused did not do so for the reasons best known Page 89 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 to him. Moreover, the record of calls made from a landline number also could have been summoned from the concerned service provider, so as to establish that certain calls were made on the aforesaid mobile number of accused from the landline phone of police station. However, even no such record was summoned. 109 When PW2/Nodal officer of Bharti Airtel Ltd., appeared before the court and proved CDR of aforesaid mobile phone number of accused, he was cross-examined at length by ld. defence counsel. This witness proved two CDRs i.e. one belonging to complainant/PW4 and the other belonging to the accused. Defence has not challenged the correctness of CDR Ex. PW2/A, which pertained to the number of complainant, rather, defence referred and relied upon the same to show location of this phone from 11.00 a.m. to 1.16 p.m. on 26.04.18. In the cross-examination of this witness, it was stated by him that he had no control over the server. But he deposed that the CDR is generated on the basis of fetching data from the server. He further deposed that when CDR is generated then, it is impliedly reflective of storage of calls in the server. Nothing more could be extracted from this witness during his cross- examination, so as to cast a doubt over genuineness of CDR proved by him. The process of storing records of call on server may or may not be amenable to manual interpolations. However, unless some concrete situation is established on the record to show that there had been manual interpolations in such record, then merely on the basis of a general dispute being raised by accused it cannot be presumed Page 90 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 that the record of calls were manipulated. 110 Accused has challenged the genuineness of record of calls reflected in CDR Ex. PW2/C to dispute that calls were made to him from the mobile number of complainant. However, as already mentioned herein above, accused had the means to procure and produce record of calls pertaining to his mobile number, so as to substantiate the dispute raised by him. In absence of the same, I do not find any ground to suspect the genuineness of CDR Ex. PW2/C, especially when the relevant entries of exchange of calls between two numbers were similar in both CDRs i.e. Ex. PW2/A & Ex. PW2/C. It is one thing to say that onus upon accused is not so heavy in respect of standard of proof as compared to the standard of proof applicable to prosecution. It is altogether different scenario that accused capable of producing some evidence, in order to substantiate and establish the plea taken by him, does not come up with such complete evidence. Even for the purpose of applying preponderance of probability, there has to be some concrete evidence on the record. Moreover, standard of proof has nothing to do with the mandate of Section 106 Evidence Act. Prosecution had proved aforesaid CDRs to show the record of calls made and received by mobile phone of the accused. If accused intended to show that he received some particular call on this mobile phone or that he did not receive any particular call on this mobile phone, as reflected in CDR Ex. PW2/C, then such facts were within personal knowledge of the accused and therefore, it was his duty to prove such facts. However, he has not Page 91 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 done so.
111 Defence has also challenged the testimony of TLO/PW10, wherein he claimed that he alongwith Insp. Shitanshu had taken position behind a car in the passage besides the building of PS. The car was parked at the end of that passage towards back side and he could see the complainant as well as accused, who had stopped just opposite that car. PW10 further deposed that he was able to hear their conversation to some extent and was also able to see money transaction between them. PW10 claimed that he heard accused saying something like "main kaam/mehnat ke paise le raha hoon". PW-10 further claimed that he saw accused taking money from the complainant/PW4. When they started going back in that passage, at that time, complainant gave signal by rubbing his both hands over his face and PW10 also gave signal to Ranjeet/PW5, who was standing in that passage in the opposite direction. Ld. counsel argued that this could not have been natural reaction of PW10/TLO to give signal to other witness i.e. PW5, rather than, immediately catching hold of accused after conclusion of money transaction. He submitted that this was improbable situation and such claim was an improvement upon the recovery memo i.e. Ex. PW4/D. 112 On perusal of recovery memo Ex. PW4/D, I do find that it is totally silent in respect of aforesaid claim of PW10. Though, aforesaid fact that PW10 himself saw the money transaction and also heard the conversation between accused and PW4 to some extent, was very important fact and in normal circumstances, such facts are expected Page 92 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 to be recorded in recovery memo, which was prepared by none else than PW10 himself. Therefore, aforesaid claim of PW10 may be an instance of exaggeration or improvement. However, one sentence of exaggeration does not make the whole testimony of PW10 unreliable, especially when testimony of PW4 and recorded conversation establish the element of demand beyond any doubt. The relevant part of recorded conversation Ex. PW4/E mentions last demand from accused in following manner:-
PW4 - Abhi kitne karne hain Accused - Abhi kitne laye ho.
PW4 - Maine sare to jod ke lakh rupiye ekatthe kiye hain. Maine badi muskil se Accused - Laye ho.
PW4 - Mere paas case ke liya bhi nahin bachenge. Accused - .....................
PW4 - Haan.
Accused - lao de do. De do laye ho.
PW4 - wahan kar doon han.
Accused - .................................... PW4 - Kahan chaloon, pichhe chaloon.
Accused - Jahan motorcycle khadi hai na bilkul wahin last main. PW4 - Kone main aage.
Accused - Haan.
113 Thus, when I appreciate testimony of all the witnesses of verification proceedings as well as trap proceedings, alongwith the contents of Page 93 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 recording in Q1 as well as in Q2, I find that both these two pieces of evidence corroborate and compliment each other in respect of events taken place and the demand is well explicit in the testimony of PW4 as well as in the recorded conversation in Q1 and Q2. Therefore, I have no doubt in respect of the alleged demand being made by accused from PW4.
ACCEPTANCE:-
114 For the purpose of acceptance, prosecution evidence is once again dependent upon testimony of PW4, recorded conversation, testimony of PW10 and evidence of other members of trap team regarding hand washes of accused being taken as well as wash of right pocket of pant of accused being taken in PS. Besides this, prosecution has also relied upon the report given by chemical examiner PW12/Ms. Dipti Bhargawa. As far as trap is concerned, accused has not disputed the fact that a CBI team alongwith complainant had come to PS Khajuri Khas in the intervening night of 26/27.04.18. Accused has also not disputed the fact that he was apprehended by CBI officers just outside the building, but within campus of PS Khajuri Khas. The dispute raised by accused is against the allegation that against his demand, PW4 handed over currency notes to him and he kept the same in the right pocket of his pant. Accused has taken plea that PW4 came and met him and he forcibly tried to put currency notes into his pocket, but accused jerked his hand and the currency notes fell down on the ground. Accused in fact examined DW3/SI Satya Dev Pawar to support such contention.
Page 94 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 115 DW3 deposed that in the intervening night of 26/27.04.18, at about 2.00 a.m., he was standing in a lawn just outside duty officer's room in his PS. At that time, accused entered the campus of PS on a bike with Ct. Vinay and he parked his bike at the corner of DO room. Accused was looking into some documents, while standing near a table kept around 2-3 steps away from his bike, when 2 civilians came out of DO room and approached accused. They shook hands with accused and accused went inside DO room. Those two persons remained standing there only and after 5-7 minutes, accused came out of DO room and started moving towards his bike. One of those civilians went to accused (whose name was Deepak) and he talked to accused for around 2-3 seconds. Thereafter, that civilian was putting something in the right pocket pant of accused, but accused pushed his hand and that thing fell down. At the same time, around 5-6 persons rushed inside from the gate of campus of PS and caught hold of accused. DW3 alongwith two other police officials also reached near accused and he asked about introduction of those 5-6 persons. One of those persons lifted that packet which had fallen down and DW3 could see that it was bunch of currency notes. Those persons introduced themselves as CBI officials. DW3 told one senior officer of that team that civilian Deepak was putting that bunch of currency notes into pocket of accused, but he was not given any attention by that senior officer. Thereafter, accused was taken inside the SHO room, but others were not allowed to go inside that room. In the cross-examination by PP, DW3 deposed that he was on duty from Page 95 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 8 p.m. of 25.04.18 to 8 a.m. of 26.04.18. He had visited Karkardooma court during day time and reached back PS at about 4.30-5 p.m. His next duty was from 8 p.m. of 27.04.18. He could not tell as to who told him about name of civilian Deepak, though, he claimed that he came to know his name at that time itself. He further deposed that CBI officer who lifted the bunch of currency notes from the ground, kept it in his hand. Accused had not taken hold of bunch of currency notes into his hand in his presence. The currency notes were not put inside the pocket of accused because, while civilian Deepak was trying to do so, the currency notes were pushed away from the outside of the pocket itself. He admitted that he was not on duty at that time and that he was given rest because of his previous night duty. However, at the same time, DW3 deposed that he was present in the lawn at 2 a.m. because he was Incharge of Special Staff of Police Station and some secret informer was expected to come to PS at that time. Thereafter, he alongwith Ct. Ravit and Ct. Sachin were supposed to go on raid to catch some robbers. However, he further deposed that they were not supposed to go on a raid related to a particular case, because there was no particular case of robbery with them, in which raid was to be conducted by them. He further deposed that the secret informer did not come to police that night. 116 On the other hand, the members of trap team i.e. PW4, PW5, PW6, PW8, PW10 & PW13 gave almost same account of facts regarding this trap proceeding. Ld. defence counsel referred to testimony of PW4, wherein he stated that Ranjeet/PW5 had stopped around 4-5 Page 96 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 steps away from them before PW4 handed over money to accused. After handing over the money, PW4 gave signal by putting his hands over his face and same was seen by PW5. When accused reached the front side of the building, signal was already given to other members of the team and PW5 pointed towards accused. Ld. counsel submitted that there was contradiction in the position of PW5 in the testimony of PW4 and PW5. He also referred to site plan Ex. PW5/P1 to contradict the position of PW5 as compared to testimony of PW4. However, I am unable to find any material contradiction in the testimony of PW4 & PW5 regarding location of PW5. PW5 also deposed that after reaching PS, he kept standing near gate of building of PS. There was some table kept within campus of PS. PW4 was talking to police officials in uniform (accused) for around 10 minutes outside the building. He could not hear their talk. There was one gallery beside the building and after sometime PW4 and that police official moved in that gallery towards back side of that building. There was dark in that gallery and he could not see as to what took place in that gallery. However, he was standing near a tree from where the gallery was visible. After sometime, the police official came back and complainant followed him. When complainant came in the lighted area, he through gesture told him that he had given money to the police official. He also deposed that there was vehicle parked in that gallery and three CBI officials were hiding beside that vehicle also. Due to complete darkness, no signal or gesture could be seen. Therefore, he had to say aloud that 'paise le liya aa jao'.
Page 97 of 114 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 117 PW6/Avnish Kumar was another independent witness of the trap team. Even he deposed that PW4 and PW5 had gone inside PS. He had remained outside the boundry of the PS. 3-4 members had taken position near the gate. After around 30-35 minutes, he heard voice of CBI officers, who were standing near the gate and thereafter they all rushed inside the PS. PW8 had also taken position outside the PS and he also went inside following other members, when he saw them rushing towards inside of PS. I have already discussed the testimony of PW10 in this regard. PW13 deposed that he had also taken position outside the campus of PS and he alongwith Anand Swaroop were standing near the gate of PS. At about 2.20 a.m. he heard noise of 'pakro parkro' from inside and then he alongwith Anand Swaroop rushed inside shouting 'ho gaya ho gaya', so as to alert other members of the team.
118 In the cross-examination of PW4, defence suggested to him that when accused came out of duty officer room, he started going in the gallery, then PW4 on his own started following him in the gallery. PW4 denied this suggestion. In response to another suggestion, he volunteered to say that at the end of that gallery, where he alongwith accused were standing, some cars were also parked. Such statement of PW4 corroborates the claim of PW10 that there was a car at the end point of that gallery and he alongwith Insp. Shitanshu had taken position behind that car. In fact, defence itself gave suggestion to PW4 that PW4 tried to put money in the pocket of accused on his own in the gallery and accused pushed his hand and Page 98 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 the currency notes fell down on the ground and at that moment, CBI officers came from the side of the nearby cars and caught hold of hands of the accused. PW4 denied these suggestions. However, from such suggestions, there remains no dispute to the fact even from the side of accused that he had been present in gallery alongwith PW4 and that money was not tried to be put into his pocket by PW4 in front of DO Room or at the corner of DO Room and that some CBI officers came from the side of cars parked in that gallery. 119 If I analyse the testimony of DW3, keeping in view the aforesaid testimony of PWs and stand taken by the accused during cross- examination of PW4, then I find that DW3 has given a wrong description of facts that the money was being thrust in the pocket of accused near corner of DO Room, where accused had parked his bike. The gallery and corner of DO Room are altogether different places. Rather, the testimony of PWs are more consistent and corroborated with each other to establish that accused alongwith PW4 had moved towards back side of building in that gallery. Therefore, testimony of DW3 is apparently false in this respect. Moreover, when it was off time for DW3, then it does not appeal to the logical sense that despite performing duty for a whole night and thereafter, spending whole day's time in the court, DW3 would have opted to stand in the lawns of PS during odd hours of 2 a.m., that too when he was supposed to do duty again during coming night from 8 p.m. to 8 a.m. next day. The excuses given by DW3 that some secret informer was expected to come and that he was to supposed to go Page 99 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 on raid to apprehend some robber are also false, because admittedly DW3 did not have any case wherein robber was to be apprehended. 120 If I read the evidence of PW4, PW5 & PW10 alongwith the recorded conversation with its transcript Ex. PW4/E, then I find that right from the facts of phone calls made by PW4 to accused while sitting in the CBI vehicle upto the facts of acceptance of money and thereafter, apprehension of accused by trap team, stand well corroborated and established on the record. I would refer to the last portion of the conversation between PW4 and the accused, wherein accused acknowledges having received money from PW4. The relevant conversations are as follows:-
Accused - Main tujhe yakin dila raha hoon agar ladke ko saja ho gayi na to ye tumhare paise na rakhe milenge jaise bhi tu de ke gaya hai. Theek hai tumhain vishwas ho to de diyo nahin to dene ki koi jarurut nahin hai.
PW4 - ......................
Accused - ........................ PW4 - ............................................ Accused - To paise mere paas rakhe rahenge theek hai or agar ladke ko saja ho jaati hai chahe matlab case sala dus saal chalo kitna bhi chalo tumhare paise mere paas aise hi rakhe rahenge. PW4 - Dus sall tak under rahega.
Accused - Samjhe nahin baat ko.
PW4 - Haan.
Accused - Main ye kah raha hoon ladka agar nahin chhutta ha ladke Page 100 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 ko jara bhi taklif hoti hai to tumhare paise jaise tum mujhe de rahe ho aise ke aise hi rakhe hue milenge main paise nahin ke bhai tumhara paise jaise mujhe de diye to mar jao dua padegi main kaam karne ke paise le raha hoon.
PW4 - Paanch Saat hazaar rupiye pade hain banki intjaam karunga gin lo.
Accused - ...................................... PW4 - Hello ho gaya hai haan.
(Noise in the background).
121 The aforesaid conversations do reflect that accused willingly accepted money from PW4 against promise of helping him in the case of his son. I have already mentioned herein above that the subsequent part of recordings included noise and voices like 'aa jao aa jao, pakad lo pakad lo'. Therefore, there remains no hesitation to conclude that accused actually accepted money from PW4 and thereafter, the members of trap team were alerted with calls like 'aa jao, pakad lo', apart from other signal given by PW4. The minor variations in respect of location of PW5 or some probable exaggeration on the part of PW10 about hearing the talk of PW4 and accused, do not go into the roots of the matter. RECOVERY:-
122 Aforesaid witnesses of prosecution have given a consistent account of the fact that both hands of accused were caught hold of by Insp. Sanjay Upadhyay and PW8 and thereafter, he was taken to room of SHO. SHO was informed about the raid, who came in that room after Page 101 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 message being sent to him. SHO was otherwise present in other part of room. PW6 was asked to check right pocket of the accused which he did and he took out currency notes from the right side front pocket of the accused. Thereafter, solution of water and sodium carbonate was prepared one by one in fresh glasses to take wash of right hand and left hand of the accused. Thereafter, accused was made to change his pant and same pocket of his pant was also dipped in a fresh solution. The solution of right hand wash and right pocket of pant of the accused had turned pink. The pocket was dried and thereafter, inner portion of the same was signed by PW10 as well as PW5 and PW6. These three witnesses had also signed the lables on bottles in which washes of both hands and right pocket of the pant of accused were transferred. All these three witnesses identified their signature on the lables of bottles containing washes as well as on the inner part of right pocket of pant of the accused, before the court. 123 PW12 deposed that she had received three sealed glass bottles marked as RHW, LHW and RSUPPW, having seal of CBI ACB ND 77/2017. She had also signed on each bottle, cloth wrappers removed from all bottles and envelope containing cloth wrappers. All these materials were produced before the court and PW12 identified her signature on the same. During her cross-examination, she deposed that record of her office showed that these bottles were found sealed at the time of receiving the same in the lab. She had found presence of phenolphthalein in RHW, LHW and RSUPPW. She proved her report as Ex. PW12/A. Page 102 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 124 Though some witnesses deposed that aforesaid proceedings had taken place in the presence of SHO, but the SHO/CW1 denied such fact. Ld. defence counsel relied upon testimony of SHO to point out this contradiction. He also referred to testimony of PW4, wherein he deposed that one of the CBI officer took out the money from the pocket of pant of Deepak Tomar. According to prosecution, PW6 had taken out such currency notes from the pocket of accused. Ld. counsel also submitted that PW4 did not say about transferring pant pocket wash into bottle. He further referred to testimony of PW5 that there was a sticker on a bottle, which was not removed. He further referred to testimony of PW8 that inner portion of pocket of pant also turned pinkish in colour, when it was so dipped in the solution. Though, it was not appearing pinkish at the time of its production before the court. Ld. counsel also referred to search of room of accused in PS as claimed by PW10 for recovery of case files of FIR no. 100/2018 and 205/2018. He once again referred to testimony of CW1/SHO to contradict such testimony. He also raised question as to who had prepared photocopy of both the case files. He submitted that since nothing was recovered nor any proceeding was conducted therefore, SHO was not made a witness to the recovery memo. 125 As far as SHO/CW1 is concerned, he did deny that any proceeding took place in his presence. As per his testimony, CBI team was present in his office room, who had caught hold of accused and two of them had caught hold of both hands of accused. Leader of CBI team asked for a room for conducting his proceedings and he Page 103 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 provided the same. Case files of both FIRs were also found kept in his office, but he could not tell as to how these files came to be in possession of CBI team. He further deposed that CBI team simply shifted to another room and they did not go on the first floor of the PS. He demanded back those two case files and thereafter, CBI took attested photocopy of those case files from CW1. It has also come in the testimony of members of trap team that they had shifted to another room, wherein proceedings were conducted. However, according to PWs the proceedings of recovery of currency notes and hand wash were done in the room of SHO itself. 126 When both hands of accused were caught hold by two different officers, then in normal circumstances, hand washes of accused could not result into pink colour unless accused had himself touched the currency notes treated with phenolphthalein powder. If phenolphthalein powder was forcefully applied on his hands by CBI team, then it was for the accused to vouch for such fact, but he has not done so. The argument of accused that misuse of phenolphthalein powder at police station cannot be ruled out, is a vague dispute being raised by accused. If there was any misuse of this powder, then it was expected from the accused to explain and specify that misuse. But he has totally kept silence regarding the manner of misuse of phenolphthalein powder, if any, during cross- examination of PWs as well as in his own defence evidence. Therefore, the proven fact remains that after apprehension of accused, his hand washes were taken into the solution of water and Page 104 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 sodium carbonate which turned pink. Same happened with right pocket of pant of accused. Therefore, in which room such proceedings took place, does not become too important question. Similarly, who photocopied the case files of two FIRs is not very important question. Admittedly, such attested photocopies were taken into possession by TLO.
127 As far as not joining the SHO into the proceedings conducted by the CBI team is concerned, I do not find any abnormality with such decision taken by TLO. Since, accused was working in that police station, it was probable that other police officials including SHO could be having sympathies or favourable opinion for the accused. In fact, all three DWs produced by accused in this case, were police officials, who had worked with the accused and on the basis of appreciation of evidence in this case, even I sense that these three police officials had come to depose in favour of accused with only purpose to save him, without bothering to stick to truth. In respect of at least DW1 and DW3, it is certain that they made false deposition before the court to save the accused. The same approach could be probable approach of other colleagues of the accused also and therefore, it was not advisable to join them in the proceedings. CBI team already had two independent witnesses i.e. PW5 & PW6, as safeguard against any motivated action on the part of CBI. Moreover, from the testimony of CW1, it appears that even he was not interested to remain present during the proceedings as he claimed that he did not remain in the company of CBI team during their proceedings, rather, he tried to Page 105 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 stabilize the atmosphere of panic in the police station. Therefore, I do not find any merit in such objection of defence. 128 Just because PW4 did not depose about transfer of pant pocket wash into bottle or he could not remember as to PW6 had taken out currency notes from the pocket of accused, the evidence of prosecution does not become suspicious. I have already noted that every minute detail of the proceedings was not possible to be given in very correct manner and sequence by the witnesses. I do not find any material in the cross-examination of independent witnesses i.e. PW5 and PW6 which would demolish the case of prosecution regarding recovery of currency notes from the pocket of accused and the washes being taken in their presence. The testimony of PW8 that inner part of pocket of pant also turned pinkish is not improbable but that does not mean that that pinkish shade would have remained present through out such long period till the time when this pant was produced before the court. In fact, the step taken by TLO to seize the pant, could have been only thought of when such currency notes were recovered from the pant. The testimony of all these PWs during their cross-examination by defence remained consistent in respect of substantive facts. For such reason, the reference to sticker on a bottle by PW5 becomes immaterial.
129 PW5 and PW6 remained consistent over the fact that after recovery of these currency notes from the pocket of accused, their numbers were again compared and verified with such particulars already prepared in CBI office and same were found similar. This document Page 106 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 Ex. PW4/C was separately prepared as Annexure A and was signed by both these two witnesses after comparison. Just because personal search was not offered by CBI team to the accused before recovery of currency notes from his pocket, the other evidence showing acceptance of such currency notes by accused and keeping them into his pocket, cannot be washed away. Thus, in view of my aforesaid observations, I find that recovery of currency notes treated with phenolphthalein powder during pre-trap proceedings, from right front pocket of pant of accused stands well established on the record. 130 In the arguments, certain points have been raised stating that no proceedings dated 16.05.18 and 22.05.18 had taken place in CBI office as claimed by prosecution and IO/PW14. This argument was based on testimony of PW5 and PW6, wherein PW5 deposed that no recorded conversation was played before him on 22.05.18 and PW6 deposed that he was not wearing spectacles, therefore, he could not read the documents which were signed by him on 22.05.18. Similarly, PW3 stated that transcript was already prepared, which was matched by him with the recorded conversation on 16.05.18. However, I do not find much significance of these contentions because on 16.05.18 and 22.05.18, as per prosecution the independent witnesses and complainant visited CBI office and recorded conversations were played before them, on the basis of which they identified the respective voices and transcripts were prepared. I have already mentioned that I myself heard all the recordings in Q1, Q2 & S1, so as to compare them with the transcripts proved on the record as well Page 107 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 as with the testimony of different PWs. As far as proved transcripts are concerned, I have already recorded that they are in consonance with the recorded conversations. Though, they are not the complete transcripts of all the recordings. Therefore, any variation appearing in the testimony of aforesaid PWs becomes insignificant in respect of voice identification cum transcription memo. Similarly, absence of video recording of all proceedings cannot be fatal for the case of prosecution.
Presumption under section 20 of the Act:-
131 My foregoing discussion on evidence, establishes the existence of demand, acceptance as well as recovery of bribe amount from the accused. In such situation, as far as offence u/s 7 of the Act is concerned, a presumption u/s 20 of the Act comes into play. 132 In the case of M. Narsinga Rao Vs State of Andhra Pradesh, Supreme Court 2001 CRI. L. J.515, a three judge bench of Supreme Court was dealing with legal question that "can a legal presumption be based on a factual presumption?" In that case the complainant and independent witness to the trap proceedings had turned hostile and they did not support the allegations of the prosecution that accused had demanded and accepted bribe amount of Rs. 500/- from PW-1. In the appeal, accused took plea before the court that the presumption u/s 20 of the Act could be drawn only when the prosecution succeeded in establishing with direct evidence that the delinquent public servant accepted or obtained gratification.
Defence also argued that "that premise cannot depend on an Page 108 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 inference for affording foundation for the legal presumption envisaged in section 20 of the Act." It was further argued by defence that it is not enough that some currency notes were handed over to the public servant, to make it acceptance of gratification. Prosecution has a further duty to prove that what was paid amounted to gratification.
133 While dealing with such arguments, larger bench of Supreme Court held that:-
"the only condition for drawing such a legal presumption u/s 20 is that during trial, it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. It's only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act."
The court made further observations as under:
"In reaching the conclusion, the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process, the court may have regard to Page 109 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 common course of natural events, human conduct, public or private business vis-a-vis the facts of the particular case. The discretion is clearly envisaged in section 114 of the Evidence Act."..........
"Illustration (a) to section 114 of the Evidence Act says that the court may presume that "a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession." The illustration can profitably be used in the present context as well when prosecution brought reliable materials that appellant's pocket contained phenolphthalein smeared currency notes for Rs. 500/- when he was searched by PW7 DSP of the Anti Corruption Bureau. That by itself may not or need not necessarily lead to a presumption that he accepted that amount from somebody else, either stuffing those currency notes into his pocket or stealthily inserting the same therein. But the other circumstances, which have been proved in this case and those preceding and succeeding the searching out of the tainted currency notes, are relevant and useful to help the court to draw a factual presumption that appellant had willingly received the currency notes."
134 The court further referred to another observation made by a three Page 110 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 Judge Bench of same court in the case of Raghuvir Singh v. State of Haryana, AIR 1974 SC 1516. In this case, J.Krishna Iyer observed that the very fact of an assistant station master being in possession of the marked currency notes against an allegation that he demanded and received that amount is "res ipsa loquitur". 135 The court further referred with approval to following observations made by same bench in the case of Madhukar Bhaskar Rao Joshi v. State of Mahrashtra, 2000 AIR SCW 4018, so as to dispel the argument of defence that it was not gratification which the appellant had received:-
"The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established, the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So that word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for the official act, the word 'gratification' must be treated in the context to mean any payment for Page 111 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 giving satisfaction to the public servant who received it."
136 Thus, the Supreme Court in aforesaid case negated the argument that in absence of direct evidence, presumption u/s 20 of the Act cannot be raised or in such situation, case of prosecution is bound to fail. In the present case, as per my findings, prosecution has established recovery of tainted money apart from demand and acceptance. Therefore, even otherwise, in absence of rebuttal to presumption u/s 20 of the Act, it has to be presumed that accused had accepted such amount as a motive and reward to favour complainant/PW4 in the case registered against son of complainant. 137 In State v. A. Parthiban, (2006) 11 SCC 473, Supreme Court while dealing with a case of conviction of accused u/s 7 as well as u/s 13 (1) (d) of the Act made following observations:-
"8. Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the Act. But 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. The act alleged against the respondent, of demanding and receiving illegal gratification constitutes an offence both under Section 7 and under Section 13(1)
(d) of the Act. The offence being a single transaction, but falling under two different sections, the offender cannot be liable for double penalty. But the High Court committed an error in holding that a single act of receiving an illegal Page 112 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 gratification, where there was demand and acceptance, cannot be an offence both under Section 7 and under Section 13(1)(d) of the Act."
SANCTION:-
138 Though, no particular argument was made on the point of sanction, but accused in his plea u/s 313 Cr.P.C. raised contention that only draft sanction was sent to DCP/PW1, which was copied and signed by him. Accused also pleaded that the sanction was thus, accorded in mechanical manner. However, if I refer to testimony of PW1, who was undisputedly the sanctioning authority, then it is well evident that he deposed that request letter for sanction was sent along with copy of FIR, verification report, recovery memo, statement of complainant namely Deepak Kumar and some more documents. PW1 further deposed that on perusal of those documents, he formed opinion that accused was involved in this case and he also found it justified to accord sanction for his prosecution under P.C. Act. During his cross- examination, his attention was taken to one blank column at Sr. No. 3
(b) in the FIR. However, in my opinion this blank column does not affect the case, because FIR was otherwise explicit to narrate the allegations against the accused. This witness further deposed in his cross-examination that a file was prepared in his office for the purpose of according sanction, but he had not brought that file as he was not asked to do so. Defence did not make any such demand for production of that file, so as to check what materials were put before PW1 before he accorded the sanction in this case and to raise any Page 113 of 114 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI/253/2019 RC-15(A)/2018 contention regarding incomplete materials sent to PW1. The sanction order Ex. PW1/B refers to all the allegations made against the accused, the findings given in the verification memo, recovery memo and the chemical examination report of washes. It also refers to the recorded conversation and therefore, I do not find any infirmity in the process of according sanction by PW1.
CONCLUSION:-
139 In the present case, it has been successfully proved that accused demanded bribe from complainant/PW4, in order to show favour to him in the case registered against son of PW4. Thus, it was not only a case of receiving gratification for showing such favour, which was beyond the ambit of official duty of the accused, but at the same time, it was also an instance of abusing his position as investigating officer, so as to obtain pecuniary advantage from the complainant. DECISION :-
140 In view of my foregoing discussions, observations and findings, accused is held guilty for offence punishable u/s 7 & u/s 13 (2) read with Section 13 (1) (d) of The Prevention of Corruption Act, 1988 and Digitally signed he is convicted accordingly. by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date:
2019.05.21 14:43:07 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 21.05.2019 Special Judge (PC Act) CBI-13, (This judgment contains 114 pages) Rouse Avenue District Court, New Delhi.Page 114 of 114 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi