Delhi District Court
Cbi vs 1 Kesha Ram (A-1) on 29 November, 2017
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (CBI-04)
TIS HAZARI COURTS: DELHI
CNR No. DLCT01-000107-2010
New CC No. 532258/2016
RC No. 23(A)/09/CBI/ACB/ND
U/s 7, 13 (2) r/w 13 (1) (d) PC Act 1988
CBI Versus 1 Kesha Ram (A-1)
Son of Sh. Katawaru Ram,
Resident of Q. No. B-4,
Central Jail, Tihar, New Delhi
2 Rakesh Kumar Jain (A-2)
Son of Sh. Dharam Pal Jain,
Resident of Q. No. H-382,
Vikas Puri, New Delhi
Date of Institution : 01.07.2010
Date of conclusion of Final Arguments : 14.11.2017
Date of Judgment : 28.11.2017
JUDGMENT
PROSECUTION STORY 1.0 Sh. Kailash Chander (PW11) was a contractor. His firm M/s Kailash Chander & Sons had been awarded tender by the office of Executive Engineer, PWD, Civil Bhawan, M-332, Jail Road, Delhi on 10.09.2008 for Rs. 2,45,969/-. It pertained to 'Annual Repair and Maintenance' of three schools of Vikaspuri Area. He completed the work in question within the fixed period though due to extra work and deviation from the stipulated contract, the final bill escalated to Rs. 3,30,000/-.
CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 1 of 551.1 Kesha Ram (A-1) was posted as Junior Engineer (JE), PWD in the office of Executive Engineer, PWD, Civil Bhawan, M-332, Jail Road, Delhi. Rakesh Kumar Jain (A-2) was Assistant Engineer (AE) in the same office.
1.2 They both were overseeing said work and were required to certify about the completion of said work order and consequent release of payment to the contractor.
1.3 Complainant submitted final bill to A-1 but he demanded bribe of Rs. 1.30 lacs for processing the same. This led the complainant to report the matter to CBI. He went to CBI office on 14.05.2009. The contents of his written complaint (Ex. PW11/A) were got verified. In CBI office itself, A-1 was contacted on his mobile by complainant at about 1.05 PM same day. The Conversation between them confirmed and corroborated the version of complainant about demand of illegal gratification by A-1.
1.4 Trap was decided to be laid.
1.5 Two independent witnesses i.e. Sh. Sant Lal Bhardwaj (PW10), Assistant Malaria Inspector, MCD West Zone and Sh. Prahlad Singh Verma(PW15), Assistant Director, Commercial Estate, DDA, Vikas Sadan, New Delhi were requested to participate in the trap proceedings. Complainant had arranged a sum of Rs. 70,000/- for paying as bribe. These notes were treated with phenolphthalein powder. Practical demonstration regarding reaction between such powder and colorless solution of sodium carbonate was given to all team members. After completing preliminary proceedings at CBI Office, all the team members, including both the independent witnesses and complainant, left CBI office at 04:15 pm for office of PWD situated within Tihar Jail Complex.
CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 2 of 551.6 Complainant received a call from A-1 who rebuked him for delaying the payment of bribe and also directed him to hand him over the money at his quarter situated within the same complex. Complainant was accordingly directed to proceed to the house of A-1 and Sh. Sant Lal Bhardwaj, who had been asked to act as a shadow witness, accompanied him. Digital Voice Recorder (DVR), in 'recording on' mode, was placed inside the left pocket of shirt of complainant. However, before complainant could reach house of A-1, he was himself found coming on a motorcycle. He stopped near complainant and had a little conversation with him and directed him to meet him in the office.
1.7 Complainant accordingly reached his office. Shadow witness also followed him from a safe distance. Other members of trap team also took appropriate positions in disguise in the vicinity.
1.8 After around half an hour, A-1 was seen entering the office premises. There was another round of conversation between A-1 and complainant.
1.9 Sh. Rakesh Kumar Jain (A-2) also reached office premises in his Santro car DL-8CG-3305. He called for complainant in his cabin through his staff official namely Sh. Munna (PW9). Complainant went to his room and then A-2 demanded bribe from him. A-1 nodded for the same while uttering that he would have no objection if the bribe amount was handed over to A-2 as he (A-1) would be eventually getting his share. This reflected that both the accused were acting in league.
1.10 A-2 then took complainant inside his Santro Car and while inside the car, A-2 asked for the bribe. Complainant handed him over those treated CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 3 of 55 GC notes of Rs. 70,000/. A-2 accepted the same and put the same in the 'glove box' of the car.
1.11 Complainant immediately gave a missed call (pre-designated signal) to TLO upon which CBI team rushed there and apprehended both the accused. Hand-washes of both the hands of A-2 were taken which confirmed that he had accepted the notes. Bribe amount of Rs. 70,000/- was also recovered from the glove box/dashboard of said car of A-2.
1.12 Both the accused were arrested and comprehensive investigation was carried out. Specimen voice of A-1 was obtained and sent for comparison with his questioned voice as available in verification call as well as in later conversation. CFSL gave positive opinion regarding such voice sample. It stood established that both the accused had conspired together and accordingly, A-1 had demanded bribe for self and for his co-accused for processing the bill with respect to the work executed under Agreement No. 67/EE/CBM Div. M-332/GNCT/2008-09 and that such bribe was eventually accepted by both of them in a pre-planned manner.
1.13 After obtaining sanction for prosecution, charge-sheet was submitted.
1.14 It is in these circumstances that both the accused have been sent up to face trial for commission of offences under Section 120B IPC r/w Section 7, 13 (2) & 13 (1) (d) of Prevention of Corruption Act 1988.
COGNIZANCE & CHARGES 2.0 Charge sheet was submitted in the court on 1.7.2010. Cognizance was CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 4 of 55 taken by the court and both the accused were directed to be summoned for com- mission of offences under Sections 7 and 13(2) read with Section 13(1)(d) of P. C. Act.
2.1 Arguments on charge were heard on 10.9.2010. Both the accused were directed to be charged with offences under Sections 120-B IPC read with Section 7 of P. C. Act and under Section 13(1)(d) punishable under Section 13(2) of P. C. Act.
2.2 Charges were framed accordingly to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE 3.0 Prosecution was directed to adduce evidence and it examined sixteen witnesses.
3.1 These are as under:
PW1 Dr. N.M. Hashmi, Senior Scientific Officer, CFSL (for proving report of hand-wash) PW2 Sh. M.N. Vijayan, Nodal Officer, TATA Tele Services (for proving call details of mobile of complainant) PW3 Dr. Rajinder Singh, Director, CFSL (for proving voice report of A-1) PW4 Rama Shankar Yadav, Junior Telecom Officer (for proving customer application form related to mobile number 9868072053 allegedly used by A-1) PW5 Sh. Rajiv Lochan, Executive Engineer (official under whom both the accused were working) PW6 Sh. Satya Prakash (for proving the fact that A-1 was user of mobile 9868072053) PW7 Sh. Parimal Roy (for proving that A-1 was the user of mobile number 9868072053) PW8 Sh. M. Anna MalaI, Superintending Engineer (Sanctioning Authority qua CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 5 of 55 A-1) PW9 Sh. Munna (spot witness/ Guard of the office of PWD) PW10 Sh. Sant Lal Bhardwaj (independent/shadow witness) PW11 Sh. Kailash Chander (complainant) PW12 Sh. Vikas Kumar Pathak (investigating officer who conducted investigation post-trap) PW13 Sh. P.K. Srivastava, Inspector, CBI, ACB (Trap Laying Officer) PW14 Sh. Yogesh Kumar, Inspector, CBI, ACB (Verifying officer/spot witness) PW15 Sh. Prahlad Singh Verma, retired Dy. Director, DDA (independent witness) PW16 Sh. Bhishma Kumar Chugh (Sanctioning Authority qua A-2) STANCE OF ACCUSED
4.0 Statements of both the accused were recorded under Section 313 Cr.P.C. in which they pleaded innocence.
4.1 Accused Kesha Ram (A-1) claimed that he had never demanded any money from the complainant at any point of time. According to him, neither the complainant had completed the work mentioned in the work order nor submitted any bill, either to him or in the division/sub-division office. He also denied having made any telephonic call to him and also out-rightly denied the prosecution story related to trap. According to him, complainant and CBI projected a wrong and fabricated story. He claimed that he was given beatings by the trap team members as he agitated against his false implication while supplementing that investigation in the present case was not fair. He also pleaded ignorance regarding mobile no. 868793028 and 9868072053. He revealed that he knew complainant prior to the tender in question and complainant was expecting that he (Kesha Ram) would favour him illegally and since he refused to help him, complainant was harbouring a grudge against him. He also claimed that on 14.5.2009 at 7.00 PM, he did not find his passbook of Indian Bank, a crossed cheque and ATM Pin and CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 6 of 55 realized that he had left those in his office and, therefore, he left for his office to collect the same. When he reached office, he met complainant inside the office who told him that he was waiting for someone. He then went inside his office and found said articles lying in the drawer. Complainant also followed him inside the office and sought his permission to sit there to wait for the person whom he wanted to meet. Thereafter, complainant kept on sitting in his room for around 1½ hours and chatted about day-to-day life and thereafter complainant left his room. After about five minutes, Munna chowkidar came running and told that some people had caught hold of Bade Sahab and were abusing him. When he came out side, those persons started misbehaving with him also and eventually, he was falsely implicated.
4.2 Accused Rakesh Kumar Jain also pleaded innocence and ignorance. He claimed that the work of AE starts only after completion of the work, issuance of completion certificate by EE/Engineer-in-Charge and submission of the bill by the contractor. He denied having knowledge of any activity of complainant or his co-accused or CBI officials on 14.5.2009.He claimed that he had gone to Jail Complex for inspection that evening on foot and came back to his office compound to pick his belonging such as brief case, tiffin and his car at around 8.45 PM and no one had conversed with him after his arrival in the office. He picked up his brief case and tiffin and came to his car and when he was on the driver seat, he was apprehended at around 8.50/9.00 PM.
4.3 Following witnesses were examined in defence:-
DW1 Sh. S.P. Singh, Assistant Engineer (Electrical), PWD DW2 Smt. Manju Goel, Dy. Education Officer, Govt. of NCT of Delhi DW3 Dr. Deepak Mittal, Dy. Health Officer, West Zone DW4 Sh. O.N. Awasthi, Executive Engineer (Vigilance), CPWD CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 7 of 55 DW5 Sh. Vivek Kumar Garg, Junior Engineer, PWD DW6 Sh. H.C. Pathak, Executive Engineer, PWD DW7 Sh. Rajiv Ranjan, Nodal Officer, Tata Tele-services DW8 Sh. Deepak Kumar Tanwar, Senior Scientific Officer (Physics), CFSL DW9 Sh. Sunil Kumar Gupta, Legal Advisor (retd), Office of DG Prison, Tihar DW10 Sh. Jeevan Lal, Sub Inspector (retd), ACB, CBI DW11 Sh. Ram Kumar, Naib Tehsildar, Rajasthan DW12 Sh. Dushyant Singh, HC/Caretaker, ACB, CBI DW13 Sh. Ajit Singh Kataria, AE (CDC) (Civil), Tihar Jail Complex DW14 Sh. Sanjiv Kumar, Dy. Secretary (Estt) DOPT 4.4 It will also be not out of place to mention here that A-2 had also moved an application for summoning of documents from CBI. Such application under Section 91 Cr.P.C. was allowed by the court vide order dated 27.11.2015.
4.5 Five witnesses were, accordingly, examined as court witnesses.
CW-1 Sunil Kumar produced case receipt/dispatch register from 2007 till 2009. He was from Physics Division and he claimed that there was entry dated 5.6.2009 regarding three sealed parcels. Report was ready on 16.3.2010 and such report was handed over to the concerned authority on 23.3.2010. Relevant entries have been proved as Ex CW-1/A and Ex CW 1/B. CW-2 Dhan Singh Badothyia, official of Chemistry Division, CBI has deposed that on 5.6.2009 three bottles were received in Chemistry Division and report was ready on 29.10.2009 and such report was handed over on 1.12.2009. Copy of register has been proved as Ex. CW 2/A.CW-3 Dushyant Singh produced dead stock register from CBI. According to his deposition, in the year 2009, there were four DVRs with CBI but only three DVRs were available for use as one DVR had been misappropriated by one accused in CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 8 of 55 some other case. He also gave details regarding purchase of such DVRs. He also claimed that there were two compact cassette recorders purchased in the year 2009 and relevant record has been proved by him as Ex. CW 3/A and CW 3/B. CW-4 Ashok Kumar has been examined to prove logbook of vehicle no. DL3CJ 4304. It was stated to be Gypsy of CBI, ACB, Delhi. As per log book entry, such vehicle had been booked by Sh. P. K.Srivastava, Inspector, ACB on 14.5.2009 from 5 PM to 4 AM for visiting places mentioned therein. Such vehicle left CBI office at 5.00 PM and returned at 4.00 AM. Relevant entry has been proved as Ex. CW 4/A. CW-5 Sh. Rakesh Kumar has proved visitor/gate register of ACB CBI, New Delhi from 24.11.2008 to 4.3.2010. He also proved the copy of dispatch register ACB, CBI, New Delhi containing entry dated 27.05.2009 as Ex. CW 5/A and Ex. CW 5/B. RIVAL CONTENTIONS 5.0 Sh. A.K. Rao, learned Sr.. P.P. for CBI has contended that prosecution has been able to prove its case beyond shadow of any doubt. He has contended that there is no reason whatsoever to disbelieve or discard the version of complainant Kailash Chander who has withstood the exhaustive grilling in a splendid manner. According to him, when any such witness is examined after considerable time gap, such witness is bound to miss out on some of the details and description. Sh. Rao has asserted that overall testimony of complainant is fully credible and there is nothing to show that he has come up with any false version.
5.1 Sh. Rao has also argued that complainant had been harassed by the accused persons and both the accused had conspired together and were not clearing his bill and, therefore, complainant had to knock the doors of the investigating agency. He has contended that 'verification call' clearly suggested the demand on the part of accused and accordingly a trap team was constituted CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 9 of 55 and both the accused were caught red-handed. He has argued that when accused Kesha Ram (A-1) was eventually arrested, same mobile phone was recovered from his possession to which the call had been made to him at the time of verification and even subsequently and, therefore, accused Kesha Ram cannot be permitted to disown that he was not using said mobile phone. As regards, independent witnesses, Sh. Rao has clearly admitted that though they did not come up with all the details in the most authentic and precise manner but their testimony so far as it remains unimpeached, can be pressed into service for the purpose of corroboration. He has strongly relied upon scientific reports (voice report as well as chemical report) as well as cassettes containing alleged conversation and its transcription to drive home the point that bribe was demanded and was eventually paid as well. According to him, even if panch witnesses do not support the case of prosecution, there is no impediment in accepting the truthful version of complainant and other CBI officials.
5.2 Sh. Rao has also relied upon the various judgments and, in particular, over Vinod Kumar Vs. State of Punjab 2015 Cr.L.J. 1442 Supreme Court. In that case, there was delay in cross-examination which resulted in prevarication from the examination-in-chief. According to Sh. Rao, in said case, due to there being delay in the cross-examination, accused had all the time in the world to gain over the witness and, therefore, the witness was eventually declared hostile and was re-examined and when the evidence of such witness was read in its entirety, it was still relied upon. In the present case also, according to Sh. Rao, cross-examination of complainant is spread over number of years and, therefore, if he has not been able to recapitulate all the details, defence cannot be permitted to dig out any advantage.
5.3 Sh. Manish Kumar Singh, learned defence counsel for A-1 has assailed the prosecution case claiming that prosecution case suffers from various CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 10 of 55 omissions and contradictions. According to him, prosecution has not been able to prove its case at all. His prime contentions are as under:-
(i) Testimony of complainant is not believable and convincing. It is also not clear whether he had brought handwritten complaint in CBI office or whether he was made to write the same in CBI office. Contents of such complaint are also contrary to the facts proved on record.
(ii) There is nothing on record to hold or substantiate that A-1 Kesha Ram is subscriber or user of mobile no. 9868072053.
(iii) Manner of preparation of the verification memo and of making alleged verification call raise doubt over the veracity of prosecution case.
(iv) Prosecution has deliberately concealed material fact regarding the visit of complainant as well as independent witness to CBI a day before, i.e. on 13.5.2009.
(v) Both the independent witnesses have not supported the case of prosecution.
(vi) Use of seal becomes highly doubtful in view of the hostile testimony of shadow witness to whom the seal was allegedly entrusted to. Moreover, such seal has never been produced in the court.
(vii) It is not clear as to when, where and how the transcription had been prepared.
(viii) The electronic evidence has not been proved in the desired manner. Such transcription also does not match with the alleged conversation.
(ix) Accused Kesha Ram had never given his specimen voice at any point of time. Memo prepared in this regard is false and fabricated.
(x) Report of CFSL expert is procured and manipulated.
(xi) Site plan does not reflect the exact position of the trap team members.
(xii) There is no demand on the part of A-1 at any point of time. Moreover, there is neither any acceptance nor any recovery from A-1.
(xiii) The prosecution documents are fabricated and manipulated which were prepared later on.
5.4 Sh. H.K. Sharma, learned defence counsel for A-2 has assailed the prosecution case, inter-alia, on the following grounds:
(i) No demand has been attributed to A-2 in the earliest prepared documents i.e. CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 11 of 55 D-1 to D-4.
(ii) The aspect relating to recovery of bribe money is doubtful and shrouded with mystery and serious contradictions.
(iii) Deposition of prosecution witnesses does not clearly depict the spot where the alleged transaction took place. All the witnesses have come up with contradictory versions in this regard.
(iv) If at all A-2 had entered into any conversation with the complainant or if at all complainant had been allegedly called by 'Munna, there would have been utterances to that effect. However, there is no conversation with A-2 or with Munna in Q-2. Moreover, no sample voice of A-2 was ever taken during the investigation.
(v) Evidence related to Hand washes is not worth relying upon. Testimony of independent witnesses clearly indicates that A-2 was badly beaten up in PWD office situated in Tihar Jail Complex.
(vi) The aspect relating to taking of hand washes of A-2 is highly doubtful and even the description of the alleged colour as depicted in D-5, letter of SP to CFSL as well as oral testimony does not match with one another.
(vii) Testimony of complainant is not inspiring any confidence and remains uncorroborated. He has also come up with numerous improvements and has introduced various new facts.
(viii) Testimony of Munna also belies and demolishes the case of prosecution.
(ix) None of the independent witnesses have supported the prosecution version and have rather spoken contrary to the prosecution case.
(x) Electronic evidence is not admissible for number of reasons, i.e. non-
production of primary evidence i.e. DVR, non-production of certificate under Section 65-B of Evidence Act regarding alleged transfer of contents from DVR into cassette and also because the alleged transcription does not match with the allegedly recorded conversation.
5.5 Both the learned defence counsels have also contended that sanction has not been obtained in the desired manner as the entire material was never placed before the concerned sanctioning authority. Additionally, according to Sh.
CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 12 of 55Manish, the sanction qua A-1 Kesha Ram has been given by the authority which was not even otherwise competent to accord any such sanction. Both the counsels have also furnished written arguments.
5.6 Sh. Manish Gupta, learned counsel for A-1 has relied upon following judgments:-
(i) Kalyan Kumar Gogoi Vs. Ashutosh Agnihotri & Anr. AIR 2011 SC 760
(ii) Banari Dass Vs. State of Haryana 2010 (3) JCC 1844
(iii) V. Venkarata Sulabrao Vs. State Crimes 101 (SC)
(iv) Gulam Mahmood A Malek Vs. State of Gujarat AIR 1980 SC 1558
(v) State of Kerala & Anr. Vs. C.P. Rao 2011 (3) CC Cases (5) 182
(vi) Rakesh Bisht Vs. CBI 2007 Crl. J 1530 Delhi
(vii) Anvar P.V. Vs. P.K. Basheer & ors. 2014 X AD (SC) 305
(viii) Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143
(ix) Sujit Biswas Vs. State of Assam (Criminal Appeal No. 1323/11)
(x) Suraj Mal Vs. State (Delhi Admn) 1979 (4) SCC 725
(xi) Syed Peda Aowlia Vs. Prosecutor High Court Hyderabad 2008 (3) JCC 1806
(xii) State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede (2009) 15 SCC 200
(xiii) Dilip & Anr. Vs. State of MP (2007) 1 SCC 450
(xiv) Roshan Lal Saini Vs. CBI 2011 (1) JCC 102
(xv) State of Karnataka Vs. V.L. Muniswamy AIR 1977 SC 1489 (xvi) SS Tyagi Vs. CBI 1996 JCC 144 (xvii) Ram Krishan Prajapati Vs. State of UP 2000 (10) SCC 43 (xviii) Panalal Damodar Rathi Vs. State of Maharashtra 1979 (4) SCC 526 (xix) Johan Pandian Vs. State of Tamil Nadu 2010 (4) SCC 129 5.7 Sh. Harsh K Sharma, learned counsel for A-2 has relied upon following judgments:-
(i) Vasant Rao Guhe Vs. State of MP 2017 IX AD (SC) 1 (ii) Sonu @ Amar Vs. State of Haryana 2017 VIII AD (SC) 173 (iii) Harpal @ Chhota Vs. State of Punjab VIII (2016) SLT 88 (SC) (iv) Girwar Singh Vs. CBI 2016 V AD (Delhi) 265 (v) Anil Kumar Tito Vs. State of Delhi2015 V AD (Delhi) 470 (vi) Anvar P.V. Vs. P.K. Basheer & ors. 2014 X AD (SC) 305 (vii) Mukhtiar Singh (since deceased) Thr. L.R. Vs. State of Punjab 2017 VIII AD (SC) 53 (viii) Krishan Chandra Vs. State of Delhi 2016 I AD (SC) 473 (ix) Jose @ Pappachan Vs. SI of Police 2016 AD (SC) 65 (x) P. Satyanarayana Murthy V. The Dist. Inspr. of Police & Anr. 2015 X AD (SC) 369 CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 13 of 55 (xi) C. Sukumaran Vs. State of Kerala 2015 II AD (SC) 69 (xii) CBI Vs. Ashok Kumar Aggarwal (2014) 14 SCC 295 (xiii) P. Parasurami Reddy Vs. State of AP (2011) 12 SC 294 (xiv) John Pandian Vs. State of Tamil Nadu 2010 (14) SCC 129 (xv) State of Maharashtra Vs. Dnyaneshwari Laxman Rao Wankhede (2009) 15 SCC 200 (xvi) Noor Aga Vs. State of Punjab 2008 (9) Scale 681 (xvii) State of Karnataka Vs. Ameer Jan 2007 SCC (11) 273 (xviii) Dilip & Anr. Vs. State of MP (2007) 1 SCC 450 (xix) Kanhaiyalal Vs. State of Rajasthan 1998 Crl. L.J. 3155 (RJH) (xx) R. Rajendran Nair Vs. State of Kerala 1998 SCC (Crl) 254 (xxi) State of Haryana Vs. Bhajan Lal & Ors. 1992 Suppl. 1 SCC 335 (xxii) Sharad Birdhichandra Sharda Vs. State of Maharashtra 1980 SCC (Crl.) 1 (xxiii) Panna Lal Damodar Rathi Vs. State of Andhra Pradesh (1979) 4 SCC 172 (xxiv) Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh (1979) 4 SCC 172 (xxv) State of Karnataka Vs. L. Muniswamy AIR 1977 SC 1489 (xxvi) Datar Singh Vs. State of Punjab AIR 1974 SC 1193 (xxvii) Vadivelu Thever Vs. State AiR 1957 SC 614
(xxviii) H.N. Rishbud Vs. State (Delhi Admn) 1955 SCR (1) 1150 EVALUATION OF EVIDENCE 6.0. I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record in the backdrop of the aforesaid contentions made at the bar.
6.1. I would be evaluating the evidence under various heads and would also advert to cited precedents before reaching the conclusion.
INDEPENDENT WITNESSES - WHETHER TRUSTWORTHY AND SUPPORTIVE 7.0 CBI had availed services of two independent witnesses.
7.1 Sh. Sant Lal Bhardwaj was posted as Assistant Malaria Inspector CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 14 of 55 in MCD, West Zone, Rajouri Garden. Sh. Prahlad Singh Verma was posed as Assistant Director (Commercial Estate), DDA. They both had reported in CBI office as per the requisition. PW-10 Sant Lal Bhardwaj was directed to act as a shadow witness. Verification call was also made in his presence.
7.2 Let me first see as to what these two neutral and independent witnesses have to offer in witness box.
7.3 PW-10 Sant Lal Bhardwaj has deposed that as per the directions of his senior officer, he had reported CBI office on 14.5.2009 and met Sh. Yogesh Kumar (PW-14). He was introduced to complainant and was read over and explained about the contents of complaint made by Sh. Kailash (complainant). He deposed that verification of the complaint was conducted in his presence and during such verification call, complainant had talked to accused Kesha Ram on mobile and the conversation was recorded and same was played before them and they heard the demand of bribe.
7.4 The aspect relating to recording of such verification call needs to be scrutinized a little deeper.
7.5 The conversation was from one mobile to other.
7.6 Whenever, such mobile conversation is to be recorded, it can be done in various ways. Firstly, software/application can be installed in the mobile device. Such application can be activated at the time of call for recording conversation. Such recorded conversation, stored in mobile device, can thereafter be heard and also transferred to some other media through some equipment. Secondly, the mobile can be connected with a recording device, either wirelessly or through cable, and a compatible recording device can then record the conversation. Thirdly, the mobile can be put on "speaker CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 15 of 55 mode". In such a situation, whatever conversation takes place can be heard and can be simultaneously recorded while also ensuring that a studio-type ambiance exists in the room where recording takes place so that there is no possibility of any external disturbance adversely impacting the quality of recording.
7.7 In the present case, there is not enough of coherence and lucidity as to which particular mode was adopted as conflicting versions have surfaced on record. Naturally, if mobile is put on speaker mode, evidently, whosoever is present in the room would also be able to hear as to what the speaker on the other end (accused Kesha Ram in the present case) was uttering. That being so, the verifying officer and independent witness would be clearly hearing as to what such other person was saying from the other end and, therefore, once the conversation comes to an end, there would not be any sense on the part of verifying officer or on the part of independent witnesses to inquire from complainant as to what transpired during the conversation. And, if they ask, the only logical inference would be that the mobile was not on 'speaker mode'.
7.8 Right here I would like to make reference to verification memo. Such verification memo has been proved as Ex. PW 10/A (D-2). It bears signature of SI Yogesh Kumar, complainant Kailash Chander and PW Sant Lal Bhardwaj. As per such verification memo, a DVR was arranged besides a sealed blank cassette along with a tape recorder. Introductory voice of the witness was recorded in the blank DVR and thereafter complainant was directed to make a call to the suspect and such conversation was 'simultaneously' recorded in the DVR. As per verification memo, once the conversation was over, the DVR was switched off and complainant was asked regarding the conversation and then complainant revealed that suspect officer had demanded bribe of Rs. 1,30,000/- and eventually agreed to CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 16 of 55 accept not less than Rs. 1,00,000/-. DVR was, thereafter, played in the presence of aforesaid independent witness and the recorded conversation corroborated the complainant's statement. This means that at the time of verification call, neither the verifying officer nor independent witness were in a position to hear as to what Kesha Ram was saying from the other side on real time basis. Once they heard the recorded conversation, only then, they learnt about demand. It means that at the time of verification call, mobile of complainant was not on speaker mode.
7.9 Let me see as to what verifying officer and complainant has to say on this material aspect.
7.10 PW-14 Sh. Yogesh Kumar has deposed that after arranging DVR to record the 'likely conversation' between complainant and accused, he directed complainant to call from his mobile to the mobile of accused and such conversation was recorded 'simultaneously' in DVR. The conversation recorded in DVR was heard which established demand on the part of accused. He did not specifically depose about the manner in which such conversation was recorded but one thing is very much clear. He felt satisfied only after he heard the recorded conversation later on, i.e. after the call was over and after the DVR was played. This means that according to his deposition, the mobile of complainant was not on 'speaker mode'.
7.11 PW-11 Sh. Kailash Chander (complainant) has deposed that he was asked by CBI officer to talk on phone to Kesha Ram so that they can verify the facts. A recording device was placed near his ear. He then talked to complainant. Thus as per him also, the mobile phone does not seem to be in 'speaker mode'. He rather talks about use of some unknown recording device.
CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 17 of 557.12 PW-10 Sant Lal Bhardwaj has come up with another revelation. He divulged that when the conversation was being recorded, telephone was on loudspeaker mode. Naturally if the mobile was on loud speaker mode then besides complainant everybody else present in the room would also be in a position to immediately comprehend as to whether any demand was made or not, unless the conversation, in itself was not clear or audible for some reason.
7.13 Here I would also like to make reference to testimony of PW-15 Prahlad Singh Verma. He had been called subsequently and even as per the case set up by prosecution, he was not present at the time of verification call but he has given a twist to the case of prosecution by claiming in his deposition dated 28.1.2014 that it was in his presence only that complainant had made a verification call to a junior engineer. He, however, claimed that he could not hear the conversation distinctly but after hearing the conversation, he was informed by CBI that he was required to join/accompany them for laying the trap. Though he was grilled by CBI also on various other aspects but surprisingly, it was not suggested to him by CBI that he was never part of the verification process.
7.14 Thus, there is not enough of clarity whether mobile phone of complainant was on speaker mode when the verification call was made and who was present inside the room during such time. I need not dwell on this point any further though fact remains that manner of recording of such verification call is replete with mystery. Needless to emphasize, the correct method was to put the call on speaker mode so that everyone present in the room could hear the live conversation for better assessment instead of making subsequent enquiry from caller and to hear the recorded conversation later.
CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 18 of 557.15 As per the specific case of CBI, PW-10 Sant Lal Bhardwaj is a very material witness. Besides being an independent witness, he was part of trap team. He was involved during the process of making of a verification call and was witness to other calls as well. He had been deployed as shadow witness and as per later call when A-1 had directed complainant to come to his quarter located in residential colony of Tihar Jail Complex, he was directed by TLO to proceed towards that quarter with complainant. As per his version, complainant came across A-1 en-route and after some conversion between them (A-1 and complainant), A-1 asked complainant to see him in the office. When they went to office, he (Sant Lal Bhardwaj) also followed the complainant. He also saw A-1 entering the office after about ½ an hour on a motor cycle and after some time, a Santo Car also entered the office in which A-2 had come to the office. In his statement made during the investigation to CBI, Sant Lal Bhardwaj had claimed that he remained outside as accused Kesha Ram (A-1) was acting in a cautious and alert manner and he did not want to raise any alarm in his mind. He also happens to be a witness of taking of hand-wash and recovery of tainted bribe amount of R. 70,000/- when such amount was taken out by from the dash board of Santo Car of A-2 by another independent witness i.e. Sh. Verma. During investigation, shadow witness had also categorically revealed that he had seen complainant sitting inside the car with A-2 Rakesh Kumar Jain. It is also important to mention that as per prosecution story the bribe transaction had taken place inside the car and money was allegedly accepted by A-2 when he was in his car.
7.16 Let me now see the version of PW-10 Sant Lal Bhardwaj in witness box. He seems to be a favorite witness of CBI as he admitted that he had earlier also gone to CBI office. In his deposition dated 10.7.2015, he categorically admitted that on number of times, he had been directed by his office to go to CBI in different such matters. This rather portrays him as a CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 19 of 55 stock witness of CBI.
7.17 However, despite being deputed as a shadow witness, he does not know much or hear or see anything significant. He did make reference to the aspects relating to verification call, demonstration of treatment of notes with phenolphthalein powder, procedure regarding recording of conversation through DVR etc. He also deposed about receiving of telephone call of A-1 supplementing that this call was recorded in his presence and also that such conversation was played in his presence. He deposed that A-1 had asked complainant Kailash Chander as to why he had not brought the money to him and directed him to pay money at his residence. According to his further deposition, Kesha Ram was not available at his house while adding that he (Kesha Ram) was rather seen on his bike coming out of his house on the way. He claimed that Kailash Chander talked to A-1 for a moment and thereafter he (Sant Lal Bhardwaj) followed complainant to the office. He does not know as to what conversation took place between complainant and Kesha Ram despite the fact that he was quite close to complainant Kailash Chander. As per his further deposition, he remained standing outside the office and does not know as to what happened inside the office. It was only when a call was received from Kailash by Sh. P.K. Srivastava, that they rushed inside the office of PWD and then he saw that Kesha Ram and Rakesh Kumar Jain had been apprehended by CBI team. His deposition is very specific and clear. He firmly and positively asserted that he was never witness to any recovery and he did not even know from which portion of the car -whether dash board or dickey- the alleged recovery had been effected.
7.18 Sealing of pullandas is, by no mean, a small task. It has its own significance.
7.19 Sant Lal, however, deposed that no seal was ever given to him.
CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 20 of 55Adding to the miseries of CBI, he went on to depose that he did not know to whom such seal was entrusted. This is, naturally, in direct contrast to prosecution version. If CBI is to be believed, the seal had been handed over to him only. Such seal has not seen the light of the day. This has potential to put a serious question mark over the authenticity of prosecution documents and pullandas which bear such seal. More importantly, Sant Lal is a neutral and independent witness and there is no reason as to why he would miss out on such elementary fact and would speak against CBI for no plausible reason. It only means that he was never handed over any such seal. If this was not enough, further salt was rubbed in the wounds of CBI's case by him as in his entire deposition, Sant Lal Bhardwaj did not make even a remote reference that he had seen complainant sitting with A-2 in his Santro Car.
7.20 Shadow witness, as the very name suggests, is required to act like a shadow and has to be, therefore, continuously with the complainant. Shadow witness is sent to have reassurance about the credentials of the complaint, aspect of demand and consequent acceptance of bribe. Here, the alleged shadow witness has not done anything worth at all. It is intriguing and baffling as to how he could not hear the short conversation which complainant and A-1 had when A-1 had met him while coming on a motor cycle. Moreover, thereafter when Sant Lal Bhardwaj was asked to go along with complainant to the office of accused (A-1), he simply took position outside the office whereas he could have easily accompanied complainant inside the office. Complainant could have also introduced him to others as his friend or relative but nothing of that sort was even contemplated by TLO.
7.21 In his cross-examination, Sant Lal Bhardwaj categorically claimed that he never heard A-1 demanding any bribe from the complainant and he had merely heard the tape recorded conversation. He also claimed that he did not know as to what was DVR. According to him, he had never gone to CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 21 of 55 CBI office in connection with the present case after the incident. This is not digestible because transcription of Q-1 and Q-2 was prepared on 30.10.2009 in CBI office and voice identification-cum-transcription memo dated 30.10.2009 (Ex. PW 11/X) (D-11) also bears signatures of Sant Lal Bhardwaj at point 'Y'. If, at all, he had never gone to CBI office later, then would CBI explain as to how his signatures are appearing on such transcription memo? He has made things worse for CBI by claiming that the conversation between accused and complainant was recorded in a CD (compact disk). Such aspect of preparation of CD is not in synchronization with the case of CBI as at no point of time, any such recorded conversation was transferred to any CD. According to his deposition when at the time of trap, both the accused were apprehended, it was dark and when he reached inside the office complex, he saw both the accused in lawn. In his cross-examination he also claimed that hand-wash of Kesha Ram had also been taken. This is not in harmony with case of CBI. In his further cross-examination, he claimed that he was called inside PWD office and he took 5 to 7 minutes to reach inside the office. When he reached inside the office, CBI had given him currency notes of Rs. 70,000/- and he was asked to tally the same and then he along with Sh. Verma had tallied those notes. In his further deposition he also explained that when he visited CBI office on 16.5.2009, he was made to sign some documents on which he could not sign on 14.5.2009. He also claimed that he had seen Mr. Jain (A-2) slapped by CBI officials.
7.22 All in all, he remained adamant and did not mention anything else about A-2 Mr. Jain. He never claimed that he had seen A-2 and complainant together in the car. Thus there is a very serious deviation in his stand . I need not remind myself that as per CBI, the bribe transaction had taken place inside the car and complainant had handed over money to A-2 in his car.
7.23 For totally inexplicable reasons, CBI seems to have owned up CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 22 of 55 such version as at no point of time, CBI sought any permission from the court to cross-examine Sh. Sant Lal Bhardwaj. Immediately after his examination- in-chief, the prosecution should have sought permission to declare him hostile and to put leading questions to him as he did not support the case of CBI on some very material aspects. Prosecution did not seek any permission to either cross-examine him or to seek clarification on material deviations and omissions.
7.24 Be that as it may, I would not mince any words in commenting that his testimony, instead of doing any good to CBI, has caused enormous harm. Of course, he is not the lone independent witness and, therefore, now let me switch over to the testimony of Mr. Verma.
7.25 As already noticed above, PW-15 Prahlad Singh Verma was never in picture at the time of making of verification call though he deposed that even such call was made in his presence. I have seen his entire testimony very minutely and I would limit my discussion with respect to relevant parts only. He claimed that he was told by CBI that he was required to accompany them to act as a recovery witness and the other independent witness was directed to become shadow witness. According to him, there were more than 15 persons in the trap team which left CBI office. He deposed that when they reached Jail Road, complainant talked to JE who asked him to meet him at his residence. When complainant along with other witness started moving towards the residence of JE leaving rest of the trap team members scattered in the group of three or four, CBI officers received a message little later that JE would be coming in the office itself. They all took position in the vicinity of PWD office. He does not speak anything as to what happened thereafter and straightway jumped to the aspect of receiving of signal at about 9/9.30 PM. Then, they all ran towards the office. He took around 5 to 7 minutes to reach the office as he was having some problem in his knees.
CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 23 of 557.26 When he entered the office, he saw that CBI officials had already caught hold of one person. Such person (might be accused Rakesh Kumar Jain) was being beaten up by CBI officials and then one more person (Kesha Ram) came there from inside the office and started questioning as to why that other person was being beaten up. The CBI officers, instead of giving any response, started beating Kesha Ram also. PW-15 Prahlad Singh Verma was informed by CBI officer that the person, whom they had earlier caught, was found in the possession of currency notes. He, very specifically, deposed before the court that he himself had not recovered any currency notes from anywhere and he was simply told by CBI that such currency notes had already been recovered from the dash board of the vehicle of Rakesh Kumar Jain (A-2).
7.27 Since this witness was also not found supporting the case of prosecution, better sense prevailed upon the prosecution this time and it sought permission to cross-examine him. However, despite specific suggestions put to Sh. Verma, he remained adamant to his stand taken in examination-in-chief and denied that he had recovered any money from the dash board of the car of accused Rakesh Kumar Jain. He also denied that he was told anything by the shadow witness. He also denied that complainant was sitting inside the car of accused Rakesh Kumar Jain. He denied that he had ever told CBI during the investigation that Rakesh Kumar Jain had taken the complainant inside his car where bribe was demanded. He was duly confronted with various portions of his statement under Section 161 Cr.P.C. as well as recovery memo Ex. PW 10/PX-4 but he remained firm and denied that any recovery had been effected by him. As per his specific deposition, the currency notes were given to him in the office whereas prosecution case is to the contrary as according to CBI, such government currency notes had been recovered from the dash board of the car of A-2 by none else than Sh.
CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 24 of 55Verma. Irresistible conclusion is that his testimony, instead of being in synchronization with prosecution, runs contrary and conversely.
7.28 The independent witnesses are joined in investigation to lend reassurance to the case of the prosecution as on most of the occasions, it is felt that, being interested witness, the lone testimony of complainant may not prove to be self-sufficient. It is with that idea only that investigating agency attempts to garner support from neutral corner. Here both the independent witnesses have, instead of giving any lending hand, have rather created ripples and cracks in the very foundation of the case of prosecution.
7.29 In such a peculiar background the evidence of complainant needs to be scrutinized very minutely and cautiously. Such testimony, therefore, needs to be pristine and spotless. It should be compelling, clinching and convincing from all angles.
VERSION OF VERIFYING OFFICER 8.0 Before touching the testimony of complainant, let me see the version of verifying officer Sh. Yogesh Kumar (PW-14).
8.1 His testimony is important because he was also a member of trap team.
8.2 He deposed that when the team was moving towards the spot, a call was received from A-1 on the mobile of complainant. During such conversation, A-1 had rebuked the complainant for being late and directed him to come to his residential quarter. Once they reached near the office of PWD, TLO directed complainant to make another call to Kesha Ram and Kesha Ram again directed him to come to his residence. Then Sh. Sant Lal CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 25 of 55 Bhardwaj (shadow witness) and complainant started moving towards the residential quarter of Kesha Ram on foot and CBI team followed them in disguised manner. After some time, a person was seen coming towards the complainant on a motor cycle who had some conversation with the complainant and then that person took 'U' turn. That person was Kesha Ram. Complainant thereafter revealed to Sh. S. K. Sinha, one of the team member that Kesha Ram had directed him to reach office where he would process the pending bill and would take the bribe money. Trap team members then took respective positions in the vicinity of PWD office and shadow witness started waiting outside the chamber of Kesha Ram.
8.3 After half an hour, Kesha Ram was seen coming to the office on a motor cycle and after his arrival, complainant went inside his office. However, shadow witness remained outside his office chamber. They were able to see Sh. Sant Lal Bhardwaj (shadow witness) standing outside the chamber of Kesha Ram. After sometime, a Santro Car entered the office premises and accused Rakesh Kumar Jain alighted down from such car and went inside the office premises. Thereafter, Mr. Yogesh could not notice anything worth telling as he immediately switched over to the aspect related to missed call received by TLO. On such call, they all including independent witnesses Mr. Verma rushed towards the office chamber of accused Kesha Ram. Shadow witness was still standing outside the office of Kesha Ram. When they entered the office chamber of Kesha Ram, both the accused were there and when TLO made enquiry about the bribe money, complainant revealed that Rakesh Kumar Jain had accepted bribe money 'just then'.
8.4 I have already noted above that if testimony of PW-14 Yogesh Kumar is to be believed, then, the place, where he had taken his position, was having a clear and direct visibility because, all along, he could see the shadow witness standing outside the office chamber of Kesha Ram.
CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 26 of 55Logically, if Yogesh could see Sant Lal outside the office chamber of Kesha Ram, then he could also see anyone entering the office chamber of Kesha Ram as well as anyone coming out the office chamber. No such event could have been missed by him. Fact remains that in his entire deposition, PW-14 Yogesh Kumar did not claim to have seen himself anyone either entering that office or coming out of that office once the complainant Kailash Chander had gone in. His testimony thus would indicate that when CBI team received signal, they rushed towards the office complex and went inside the office chamber of Kesha Ram where both the accused were found present and then they learnt that the accused had accepted bribe just then.
8.5 Surprisingly, he does not recall about the role of any staffer with the name of Munna. He deposed that he heard about name of Munna, in the context of present case, for the first time during his cross-examination. Fact remains that when he was asked to go through recovery memo Ex. PW 10/PX-4 signed by him as well, he did admit that there was reference of Munna therein. His deposition nowhere indicates that he ever saw Mr Jain (A-
2) or Munna either entering or coming out of the office of Kesha Ram.
8.6 Right here, let me also deal with the testimony of Munna.
8.7 As per specific case of prosecution, PW-9 Munna was employed as chowkidar in PWD office. During investigation, he had claimed that as per directions of Rakesh Kumar Jain, he had gone to call Sh. Kesha Ram. PW-9 Munna has, however, not supported the case of the prosecution. He claimed that he did not go anywhere to call any one on the asking of anyone. He also claimed that he did not know any person with the name of Kailash. Despite cross-examination conducted by prosecution, he did not whisper anything which may even remotely go in favour of prosecution.
CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 27 of 558.7 Evidently, even his testimony hurts prosecution.
VERSION OF COMPLAINANT 9.0 Let me now weigh up the testimony of complainant.
9.1 PW-11 Kailash Chander entered into witness box for the first time on 15.9.2011 and his testimony was eventually concluded on 24.11.2015. Undoubtedly, it is quite a long stretch. Ideally, his testimony should have been concluded as expeditiously as possible. Delay in deposition can always create difficulty in recalling the events with complete precision though certain vital facts, which get etched, are rarely forgotten or missed out in witness box.
9.2 PW-11 Kailash Chander deposed that he had been given work of whitewashing of schools and Kesha Ram, who was working as JE in PWD had demanded bribe of Rs. 1,30,000/- for preparing and passing of his bill. He claimed that he was pursuing his bill for the last 3/4 months but Kesha Ram was insisting that he should first pay gratification thereafter his bill would be prepared and, therefore, he made complaint to CBI. Such complaint has been proved as Ex. PW 11/A. 9.3 Complainant also made interesting revelation in his deposition that he had gone to CBI office on 13.5.2009 as well but he was directed to come next day along with trap money. I do not understand as to why the fact related to his such visit dated 13.5.2009 has been withheld and rather deliberately suppressed by CBI officials. None of the CBI officials, including verifying officer, TLO and IO, made even a whisper to the effect that complainant had ever come to their office on 13.5.2009. I could have ignored this omission had it been a simplicitor visit where complainant had merely come to CBI office and left without meeting any one. Here, however, PW CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 28 of 55 Kailash Chander did meet some CBI official who directed him to come next day along with trap money. This means that complainant had already shared his grievance with CBI on 13.5.2009 itself. Prosecution has not been able to give any explanation, much less a plausible one, as to why such crucial fact was kept under wraps.
9.4 After making reference about the verification call and providing of recording device, the demonstration regarding phenolphthalein powder, PW- 11 Kailash Chander deposed that when they reached near the office of PWD at about 6.30 PM, he was directed to make another call to JE Kesha Ram. Such call was made and Kesha Ram directed him to come to his quarter.
9.5 He then, followed by shadow witness, started moving towards the quarter of Kesha Ram and the other members of trap team were also following them from a distance. Accused Kesha Ram, however, met them en- route. Kesha Ram rebuked him because complainant had made him wait and then he inquired whether complainant had brought the money or not. He replied in affirmative and also showed him money by touching his pocket. Kesha Ram then told him that AE Rakesh Jain was also remembering him and inquiring that his bill was to be passed and that since the bill was to be signed by AE also, he directed the complainant to go to division office where he, as well as AE, would reach. Complainant informed the CBI team accordingly. All such team members took position in scattered manner in division office.
9.6 After 30 or 35 minutes, Kesha Ram reached division office on his motor cycle. After reaching his office room, Kesha Ram took out his bill and then complainant inquired from him whether AE had reached or not. Kesha Ram told that AE was coming in his vehicle. Kesha Ram again inquired whether he had brought AE's share of money in addition to his own share to CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 29 of 55 which complainant informed that he had brought money for both. After sometime, Rakesh Kumar Jain (A-2) reached there in his car. He proceeded towards his room but he had also directed the complainant to come to his room. A-2 sent Munna to call him and to meet him and then he left the office room of Kesha Ram. Kesha Ram also told him to go and to meet Mr. Jain and in the meanwhile, he would complete his bill.
9.7 Thereafter, complainant went to the room of Rakesh Kumar Jain who told him that "Itna Intzar Karya Diya, Itna to Officer bhee Nahi Karate". He then inquired whether he had brought money to which he replied in positive. Thereafter A-2 asked him to come to his vehicle and also directed him to ask Kesha Ram to come to his vehicle along with bill. He then went to the office of Kesha Ram and told him that he (AE) was calling him with bill (Sahab Ghari mai Bula Rahe Hai Bill Lekar Aaa Jayo). He also inquired from Kesha Ram about the payment of money to which Kesha Ram told him to pay the money in the vehicle by uttering "Bill Lekar Mai Aa Raha Hoo paise Sahab Ko De Dena Mai Aaa Raha Hoo Meri aur Sahab kee Aek Bat hai, Main Sahab sai hee Laye Lunga". He (complainant) then came out of the room of Kesha Ram.
9.8 If complainant is to be believed then he met shadow witness also immediately thereafter and confided in him by telling shadow witness, in no uncertain terms, that he had been asked to pay money in the vehicle. However, shadow witness belies him completely on said aspect.
9.9 PW11 Sh. Kailash then proceeded towards the vehicle and even the shadow witness followed him from distance. Kesha Ram also followed them. AE was sitting in the car. Complainant reached near him and AE opened the door of the car and asked him to sit inside the car. AE was on the driver seat and he occupied the adjacent front seat. AE inquired from him CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 30 of 55 about Kesha Ram on which he told him that he was coming. Thereafter AE asked for the money and complainant handed over the same to him. AE inquired from him whether the money was for both or for one to which complainant again affirmed that it was for both. A-2 then also claimed that it was one and the same thing (Hum Dono Ke Aek hee Baat Hai). AE kept the money in the glove box of dashboard of the car and then complainant gave a missed called to PW-13 P. K. Srivastava. Complainant also came out of the car and gave signal by rubbing his head and face with both hands.
9.10 If he was flashing signal by rubbing his head and face, it means that CBI officials were able to see them else there was no point in giving such signal.
9.11 CBI team reached near the car and surrounded the accused. AE was caught and Kesha Ram was also caught. Hand wash of left hand of Rakesh Kumar Jain was taken and the colour of the wash turned pink. Such wash was preserved in a glass bottle Ex. P-6.The wash of other hand of accused Rakesh Kumar was also taken which also turned light pink and which was also preserved in glass bottle Ex. P-5. He has also made reference to wash of one plastic cover over which the money was allegedly kept and when such plastic cover was dipped into solution, colour of the solution turned light pink and such solution was preserved in a glass bottle Ex. P-7.
9.12 In his further deposition, complainant claimed that after the accused was apprehended, the DVR was taken out from his pocket and was switched off by CBI official immediately and the recorded conversation was transferred from DVR to blank cassette (Q-2). He, however, also deposed that due to some reasons, the Digital Voice Recover got switched off during the proceedings and hence the entire version could not be recorded in such CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 31 of 55 DVR.
9.13 I take a little pause here.
9.14 It is a very critical revelation by complainant. He wants to indicate that either accidentally or due to some snag, DVR went off and could not record the entire conversation. If at all something of that kind had happened, it would have immediately come to the knowledge of CBI team as at the spot itself as the conversation was heard by them at the spot and after hearing the same, they felt satisfied about the demand and acceptance. None of the CBI official, during investigation, made even a whisper to the effect that there was any technical snag or some other glitch with the DVR or that the entire conversation could not get recorded. Such fact surfaced during the trial only. Investigating agency should have itself highlighted and owned up said aspect when the statements of concerned witnesses were recorded during the investigation besides mentioning the same in the charge sheet. Nothing of that sort has happened here.
9.15 Conversation contained in cassettes Q-1 and Q-2 was also played which complainant identified whilst he was in witness box.
9.16 The cross-examination of complainant is quite exhaustive and lengthy one but I would confine myself to the facts germane only.
9.17 I have already noted above that complainant was very definite as he had very firmly claimed that he had visited CBI office a day before also but in his cross-examination he took a somersault and claimed that he did not visit CBI prior to 14.5.2009. This means that he is blowing hot and cold which makes his trustworthiness little wary. If his complaint is to be believed that he had completed the entire work related to three schools in question but in his CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 32 of 55 cross-examination, he admitted that the entire work of white washing in Government Co-educational Secondary School, KG-I and KG-II, Vikaspuri could not be carried out due to some dispute between the principal and JE Kesha Ram. He deposed that he had submitted first and final bill in PWD office. Fact remains that when such file was seized during the investigation and produced before the court in the trial, such file did not contain any such final bill. Sh. Kailash Chander also admitted that he knew Sh. Rajeev Lochan, Executive Engineer, Engineer In-charge of the work in question. Complainant had to admit in cross-examination that he had received a show cause notice dated 24.12.2008 (Mark PW 11/1) from Sh. Rajeev Lochan. Such show cause reflects that complainant had been issued notice for not completing the work with respect to the contract in question. Since the complainant admitted the correctness of said show cause notice, it automatically establishes that the contents of his written complaint were factually incorrect. Since he had not completed the work and was rather issued with a show cause notice, there was no question of his visiting PWD for months together in relation to clearance of his bill. He vaguely claimed that he had completed the work prior to 14.5.2009 but if that was so, he could have at least shown the office copy of his alleged final bill. He failed to show the same either.
9.18 Complainant is required to depose from his memory. Deposition under any prompting and tutoring can cause havoc.
9.19 When he was examined on 8.7.2015, at the request of defence counsel, he was asked to take out one envelope which he had kept behind his shirt. Witness claimed that he had written certain points in order to refresh his memory and at the request of defence, such document (Ex. PW 11/DX) was retained on record. These nine pages were containing various crucial facts relating to the present case and he also admitted that he was reading the same while sitting outside the court.
CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 33 of 559.20 This implies that he is not deposing from his memory and if at all he wanted to refresh his memory, he should have sought permission from the court whilst under examination and it was for the court to consider his such request appropriately.
9.21 A DVR had been given to the complainant for recording conversation. In his deposition dated 24.11.2015, he claimed that he switched on and switched off the DVR as per requirement. He also claimed that DVR was taken back after the apprehension of the accused and then it was switched off. He admitted that such DVR did not contain any conversation between him and Rakesh Kumar Jain(A-2). His later examination would also indicate that he tried to be evasive as at most places, he responded that he did not remember the facts. So much so, when the cassettes were shown to him and when he was asked whether these were the same cassettes which were played on 30.10.2009 in CBI office, he rather claimed that these were not the same cassettes which were played in CBI office.
9.22 Let me now see the testimony of any other spot witness.
TESTIMONY OF TLO 10.0 Two of the CBI officials, who were part of the trap team, have graced the witness box. I have already discussed the testimony of SI Yogesh Kumar and it is now time to deal with the testimony of TLO Sh. P. K. Srivastava.
10.1 Sh. P. K. Srivastava has deposed that complainant had come to CBI office on 14.5.2009 and submitted his complaint to SP CBI. Such complaint came to him and he went through the complaint. After verification CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 34 of 55 was conducted by SI Yogesh Kumar, FIR was registered and a trap team was constituted under his leadership. He deposed that the members of trap team including both the independent witnesses and complainant assembled in CBI office at about 3 PM. His deposition then contains facts regarding explaining purpose of assembling, reading out the contents of the complaint, demonstration of phenolphthalein powder, keeping of tainted amount of Rs. 70,000/- in the trouser pocket of complainant by Sh. P. S. Verma with the directions to hand over the same to Kesha Ram only on his specific demand or to somebody else on his instructions, arranging of DVR, preparation of handing over memo, receiving of call on mobile phone of complainant from Kesha Ram and its recording with the help of DVR.
10.2 Sh. Srivastava has further deposed that CBI team along with independent witnesses and complainant left for PWD office. At about 6.30 PM, complainant made a call to Kesha Ram whereby he was directed to come to his quarter situated in Tihar Complex. DVR was put on switch on mode and was handed over to complainant for recording the conversation. Complainant along with shadow witness proceeded towards the quarter of Kesha Ram and rest of the team members followed them from a distance.
10.3 On way, Kesha Ram was seen coming on motor cycle. He stopped and had a little conversation with complainant and took 'U' turn. Complainant came back to them and informed Inspector. S. K. Sinha that Kesha Ram has directed him to meet in the office. Then complainant and shadow witness were directed to meet Kesha Ram in his office and remaining CBI team members took suitable position in disguise manner in the office premises. He deposed that Kesha Ram was seen entering the office on his motor cycle and chowkidar Munna directed the complainant to wait for Kesha Ram in the office. This seems to be introduction of a new fact because as per case of prosecution, Munna had entered the scene only when A-2 had arrived in the CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 35 of 55 office and not before. After sometime a car was seen entering in the office complex and thereafter eventually TLO alerted the team when he received missed call from complainant. He has not stated anything as to what transpired in between. He has not stated that during the interregnum, CBI officer or for that matter he himself was able to see the location of shadow witness or that their location was such that they could see as to who was entering and who was coming out of the office cabin of Kesha Ram. It was only when he received a missed call that they rushed inside the office premises and then complainant pointed out towards the person standing near the car and informed them that the bribe was handed over to that person i.e. A-2.
10.4 TLO has deposed that dash Board of the car was searched by Sh. P. S. Verma who recovered the tainted amount of Rs. 70,000/- from there. As already discussed above, Mr. Verma has another story to tell.
10.5 As per further deposition of TLO, the conversation recorded during the transaction of bribe amount was heard and it was transferred into a blank CD and such CD was sealed in the presence of independent witnesses and was marked Q-2. This aspect of preparation of CD (compact disk) would be touched upon in detail when I discuss about the electronic evidence.
10.6 The seal was handed over to Sant Lal Bhardwaj. As already discussed above, Sant Lal has, manifestly, contradicted him on this crucial score.
10.7 It is evident that DVR in question was never seized or produced before the court. As per TLO, such DVR remained in his custody for two days and he deposited the same in malkhana thereafter only.
CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 36 of 5510.8 When questioned specifically, TLO claimed that he did not know whether the said DVR had stopped functioning after 6.30 PM on 14.5.2009. He, however, admitted that in such DVR, there was no conversation containing his voice either with the complainant or with the accused. He also does not recall whether such DVR or cassette prepared from such DVR contained voice of A-2 or not. He, however, admitted that he had not taken specimen voice sample of A-2. He deposed that he personally met the independent witnesses for the first time between 3.15 and 3.30 PM and he did not know as to when the witnesses had arrived in the CBI office. According to his deposition, the alleged conversation between complainant and accused before the trap was recorded by putting the mobile phone on speaker-mode. He did admit that he had made a call to complainant at 19:07 hours and thereafter complainant had made calls at 19:31 hours and 20:59 hours. He admitted that he had not made reference of these calls either in his statement or in the recovery memo.
10.9 He admitted that he had never prepared any rough transcription till the time investigation remained with him. He, however, claimed that on one page, few lines were inscribed on a rough paper for recording of specimen voice of accused.
10.10 He also does not recall whether shadow witness Sant Lal Bhardwaj was associated with him in case CBI Vs. Devesh Chander Jain.
10.11 He deposed that no one in the raiding team checked the status of DVR as to whether it had recorded the conversation between 5.30 PM to 8.30 PM or not. He also submitted that in the handing over memo, it was nowhere mentioned that the transcription of the conversation was made before leaving for CBI office. Surprisingly, he also claimed that he did not remember whether after apprehension of the accused persons, he had played DVR or not.
CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 37 of 55However, when his attention was drawn towards Ex. PW 10/PX-4(D-5), he admitted that in such memo, it was mentioned that such DVR was played after apprehension of the accused. He claimed that he did not remember whether there was any conversation in DVR containing voice of Inspector Sinha or complainant or whether any person was heard telling the other to meet him in his office or whether anyone was telling the other that the bill would be prepared in the office. He failed to remember whether there was any conversation in the DVR having reference of any person (Munna) asking anyone that A-2 was calling Kesha Ram.
10.12 The site plan has been proved as Ex PW 10/PX. Fact, however, remains that in such site plan, location of trap team members including TLO is not specifically shown or highlighted. It was very important for the court to ascertain firmly and positively whether the place where TLO had taken his location was such that he could see Santro Car of A-2 or the entrance gate of cabin of A-1. If TLO is to be believed, he did not see any event with his own eyes and he rushed inside only after receiving the missed call. This does not seem digestible as the trap team was required to take the position within the office complex in disguised manner and they all must be keeping a close tab over all the activities and I am not ready to believe that they would not have seen anything at all and got alerted and entered inside the office after receiving of the missed call only.
ELECTRONIC EVIDENCE 11.0 It is very much evident that investigating agency has shown scant respect towards the handling of electronic gadgets. To say the least, these have been used in the most inept and clumsy manner.
CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 38 of 5511.1 A Digital Voice Recorder (DVR) had been put to use throughout. It was used during the recording of verification call. It was also used when complainant had conversation with A-1 en route as well as at the spot i.e. PWD office. Any such DVR, when put to use, creates folders, sub-folders and files. These files normally bear time-stamp. Whenever any recording is made through DVR and recording is stopped, a file is created with a distinct serial number as per the default settings. When DVR is again switched on for the purpose of another recording, another file with another distinct number gets created and so on. These separate file numbers, on several occasions, become very significant and give insight as to how many times and at what time the DVR was switched on and switched off besides telling us about the length of each such individual file. For the reasons best known to the prosecution, such recording device, which ostensibly was primary and invaluable piece of evidence, has been held back. It has not been produced before the Court at any stage. Moreover, DVR was not immediately deposited in the malkhana after the use. As per TLO himself, he kept the DVR with him for two days. There is no explanation as to why such DVR was not produced before the court or that why it was kept by TLO. As already noted, there are conflicting versions even with respect to the manner in which such DVR was used during the verification call.
11.2 To make the things worse, the contents of DVR were transferred to another electronic device without adhering to the fundamental precautions.
11.3 There is not enough clarity as about such other device.
11.4 Undoubtedly, as per charge-sheet, the contents were transferred from DVR to cassettes which were produced before the Court during the trial and were played as well. However, Trap Laying Officer has used word "compact disc" instead of "cassette" for the purpose of such transfer. Even CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 39 of 55 shadow witness has claimed that the contents of DVR were transferred to a compact disc. Compact disc and cassette are two totally dissimilar things in appearance. These are as different as chalk and cheese. Therefore, there was no scope of any confusion on this fundamental aspect.
11.5 As per mandatory requirement of Section 65B Indian Evidence Act, any information contained in any electronic record which when copied in optical or magnetic media through computer would also be deemed to be a document provided the conditions mentioned in said section are satisfied. In such a situation, there is clear mandate of law that such computer output should be accompanied by a certificate. Reference be made to Section 65B (4) of Indian Evidence Act. Mandatory requirement of such certificate cannot be dispensed with. This certificate assures about the genuineness of the contents, authenticity of the contents and also about the fact that contents were copied without any tampering.
11.6 No one is above the law. Investigating agency cannot claim any immunity or privilege and it is also equally bound to follow the law and to adhere to said essential requirement as scrupulously as anyone else. Unfortunately, investigating agency did not think it appropriate to furnish any such certificate. Present FIR is of the year 2008 and Section 65B Indian Evidence Act was incorporated in the statute in the year 2000 and, therefore, it cannot be agitated that the CBI was ignorant about such basic requirement.
11.7 I need not take assistance of any expert in commenting that once such files are transferred from DVR to a computer and then copied from such computer to any other media like compact disc or cassette, there is enough room for anyone to edit such audio files. In such an eventuality, any audio file can be shortened as per the convenience of the person concerned. Such files can be merged and also can be split with utmost ease. Softwares, to that CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 40 of 55 effect, are freely available. In such a peculiar backdrop, it was, therefore, most appropriate for CBI to have produced DVR in question in first place. If at all, it wanted to produce another device to which the contents had been transferred, such device should have been accompanied by a certificate under Section 65B Indian Evidence Act to assure and re-assure that contents were authentic and unaltered.
11.8 It is also surprising as to how none of the trap team member learnt, then and there at PWD office, that such DVR had malfunctioned and could not record the entire conversation. No prosecution witness made even a whisper to that effect in their statements under Section 161 Cr.P.C. No document indicates towards the aforesaid vital fact. Even the charge-sheet is conspicuously silent on said aspect. If at all, DVR had stopped at the most crucial time when the bribe was allegedly paid by complainant to A-2 and if immediately at the spot, conversation recorded in such DVR was heard in the presence of independent witnesses, it would have certainly come to the knowledge of everyone that such conversation was partial or that DVR could not record the entire conversation. It is really inexplicable as to why such an important fact was missed by the concerned witnesses and if heard, why the same was hidden from the Court. Since it surfaced during the trial only, it indicates that there is something more than what meets the eyes.
11.9 Even as regards the preparation of transcription, picture is completely blurred and hazy. It is not clear as to when and how such transcription was prepared. Public witnesses have not fully supported the case of prosecution and incongruous versions are appearing on record.
11.10 To add insult to the injury, even the transcription is not as per the contents available in cassettes. Such transcription was prepared by IO Sh. Pathak. I have seen testimony of PW12 Sh. Vikas Pathak. He has deposed CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 41 of 55 that during the investigation, voice identification-cum-transcription memo was prepared in the presence of complainant and both the independent witnesses. During such proceedings, investigation copy of the cassette was played and the witnesses had identified the voices accordingly. Thus, transcription has been apparently prepared on the basis of investigation copy which also does not seem to be appropriate. IO Sh. Pathak has admitted that cassette, which had been used for the purpose of preparing transcription, was neither submitted before the Court nor deposited in malkhana at any point of time.
11.11 Transcription has been proved as Ex. PW10/PX-2 and Ex. PW10/PX-3.
11.12 Ex. PW10/PX-2 pertains to verification call and Ex. PW10/PX-3 pertains to conversation which complainant had with A-1 en route as well as at the spot. PW12 Sh. Pathak has claimed that transcription had been prepared on 30.10.2009 after hearing each line and thereafter writing the same and thereafter again hearing the next line and then writing the same. It was first noted down by pen and pencil and thereafter same were got typed. According to him, it took him around one and half hours to two hours to prepare the transcription and complainant and both the independent witnesses had come to CBI office together and left together. His such version is, however, not in full synchronization with the testimony of complainant and independent witnesses.
11.13 Transcription, obviously, has not been prepared in full. PW12 Sh. Pathak has categorically admitted in his cross-examination that voice of Munna as well as voice of A-2 R.K. Jain was not available in the DVR as well as in the audio cassettes.
CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 42 of 5511.14 At the time of hearing of final arguments, I had called for the cassettes and heard both the cassettes containing conversation Q-1 & Q-2.
11.15 Cassette containing verification call is found containing a very crucial audio piece in the end which depicts that as per complainant, part of the bribe was also to go to A-2. Such audio piece is clearly audible as well. However, for the reason best known to the investigating agency, when the transcription was prepared, such crucial incriminating part, attributable to A-2, was completely left out and omitted. Similarly, the conversation contained in Q-2 is not properly transcribed and various significant audio pieces, some of which were even audible, have been left out. There is also no explanation as to how there were enormous background voices of bird chirping and traffic when the complainant had been allegedly sitting inside the office cabin of A-1 Kesha Ram. I am not ready to believe that such cacophony would be there within the four walls of office cabin of A-1 Kesha Ram, particularly at such a late hour of the evening. Even if it the office is adjacent to jail road, it does not look feasible that while sitting in the office, there would be so many background voices. Moreover, most of the birds chirp during daylight and sleep at night. The time when the bribe money was allegedly passed on was after 8.50 PM and it seems little strange as to how number of birds were chirping even at such late hour. Sound of such birds chirping is not at some isolated places of the conversation or few and far between. These are virtually non-stop and continuous making the conversation inaudible to a large extent. Be that as it may, investigating agency had no business to shorten the transcription. It should have prepared the transcription with complete precision and accuracy.
11.16 There is also mystery about the preparation of rough transcription. Nobody knows as to when such rough transcription was prepared and when it was actually sent to CFSL.
CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 43 of 5511.17 The final transcription had been allegedly prepared on 30.10.2009. If CBI is to be believed then a rough transcription had been prepared and sent to CFSL for rendering assistance to the voice expert. I have seen forwarding letter Ex. PW3/A (D-13). Such forwarding letter is dated 05.06.2009. Forensic expert had dispatched his report on 16.03.2010. In such report Ex. PW3/B (D-15), there is mention of specimen voice S-1, questioned voice Q-1 & Q-2. There is no reference of any transcription or for that matter rough transcription being sent to him at any point of time. I have seen the testimony of voice expert Dr. Rajinder Singh very carefully. In his cross-examination, he claimed that in the present case, he had received a rough transcription which was not signed by any witness or forwarding authority. He also claimed that normally they send request to the concerned forwarding authority to provide transcription either in original or in rough to facilitate a comparison and examination and sometimes the transcription comes along with the forwarding letter and sometimes it is received as and when required by the expert. Fact remains that he had seen the rough transcription of the present case.
11.18 It is apparent that the cassettes were sent to CFSL vide letter dated 05.06.2009. Thereafter, one more letter was sent to Director, CFSL on 06.10.2009 requesting them to forward the opinion on priority basis. Such letter Ex. DW8/A also does not talk about sending of any rough transcription. Fact remains that when DW8 Sh. Deepak Kumar Tanwar, Sr. Scientific Officer, CFSL entered into witness box, he made reference to rough transcription comprising of eight pages which had been received by them in CFSL from investigating agency. It is evident that such rough transcription is ad verbatim with the final transcription. Last communication from the CFSL to CBI is on 06.10.2009 and if investigating agency is praying for expediting the report, it logically means that it must have sent the rough transcription either CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 44 of 55 on 06.10.2009 or prior to that. This belies the alleged preparation of transcription on 30.10.2009.
11.19 Since I have touched upon the aspect of electronic evidence, it would be worthwhile to make reference about the alleged mobile phone of A1.
11.20 As per prosecution, A-1 was user of mobile number 9868072053. When the complainant had reported to CBI office, he revealed that A-1 Kesha Ram was the one who was demanding bribe. He did not raise any accusing finger towards A-2 by that time. Though in the complaint Ex. PW11/A, he did not reveal mobile number of A-1 Kesha Ram, let me assume that he provided the same to CBI on 14.05.2009 itself and thereafter only, a verification call was made. As per Sh. Rao, though one Love Khurana was the 'subscriber on record' with respect to mobile number 9868072053, it was actually being used by accused Kesha Ram. It has been contended by him that when the accused was apprehended, same mobile phone was seized from his possession and, therefore, he cannot be permitted to run away from such fact at all.
11.21 Let me refer to the concerned documents in this regard.
11.22 PW3 Sh. Rama Shankar Yadav has appeared from MTNL and has proved Customer Application Form (CAF) as Ex. PW4/B. Such form shows that applicant/subscriber was one Love Khurana. Interestingly, IO has deposed that he tried to contact such Love Khurana by sending him notice but the notice returned 'unserved'. He, however, did not personally visit the address of Love Khurana. He has also not annexed copy of any such notice sent to Mr. Love Khurana. Be that as it may, prosecution has not been able to show any plausible connection between Love Khurana and accused Kesha Ram except for the fact that mobile phone in question, which was containing CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 45 of 55 sim related to mobile number 9868072053, was eventually recovered from the possession of accused Kesha Ram. Personal search memo of accused Kesha Ram has been proved as Ex. PW13/P-3 which simply indicates that there was one mobile phone of LG which was having number 9868072053 and which had been recovered from the accused when he was arrested. Such mobile phone was never produced before the Court during the trial.
11.23 Before adverting to the testimony of other material witnesses on this aspect i.e. Parimal Rai and Sat Prakash, let me also see CDR of such mobile number. Such CDR has been proved as Ex. PW4/A (Part of D-10).
11.24 Servers of any such service provider store and maintain data with respect to exchange of calls. In terms of specific provisions of Indian Evidence Act, any such information stored in such electronic record, if generated on a paper, would also be deemed to be a document and would be admissible in any proceedings without the production of original. As already noticed above, in such a situation, certificate under Section 65B Indian Evidence Act is required to be attached. As per testimony of PW4 Sh. Rama Shankar Yadav, such call details record (CDR) was attested by him but fact remains that there is no mandatory certificate attached with such CDR. There is no explanation as to why certificate was not obtained from the service provider and placed before the Court. Merely by claiming in the forwarding letter that details were 'system generated', Court cannot get any assurance about its authenticity. There is one more angle. In such auto-generated CDR, logically and naturally speaking, calls have to be in chronological order but such CDR shows calls in rumbled and jumbled manner. These are not found to be in chronological sequence. There is no explanation as to why the calls are not in sequence. This rather indicates possibility of tempering and interpolation at the time of generation of printout.
CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 46 of 5511.25 Let me now see the testimony of two other witnesses whom the prosecution had examined in order to show that said mobile number belonged to accused Kesha Ram.
11.26 As far as PW6 Sat Prakash is concerned, he has not whispered anything in this regard. In his deposition, he revealed his own mobile number and then claimed that on 14.05.2009, he had received two calls from mobile number 9868072053. He did not throw any light as to who had called him up. Even prosecution felt satisfied with his unamusing deposition and did not attempt to put any leading question to him. Therefore, his testimony is of no help in the present context.
11.27 As regards PW7 Parimal Rai, he claimed himself to be the Vice Principal in one government aided middle school situated in Mohan Garden. He claimed that there was one landline number in his office 25352554 which number he rather read out from a slip, he was carrying. In his further deposition, he claimed that he knew accused Kesha Ram who used to frequently visit him in respect of construction of boundary wall. He claimed that he had talked to Kesha Ram on mobile number 9868072053 from said landline number. He claimed that he always used to talk to Kesha Ram on said mobile number. In his cross-examination, when it was asked from him whether he remembered mobile number of any of his relative or friend, surprisingly, he claimed that he did not remember any such mobile number of any of his relative or friend.
11.28 According to Sh. Manish Kumar Singh, learned defence counsel, PW7 Parimal Kumar Rai is rather a false, tutored and planted witness. To buttress his contention, he has strongly upon the testimony of DW2 Ms. Manju Goel. According to the information proved by her, though Parimal Kr. Rai was Vice Principal of Government Sarvodaya Bal Vidhalaya, Matiala, CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 47 of 55 New Delhi, he retired on 31.07.2007. Since he had already retired, there was no possibility of his working as Vice Principal on 14.05.2009 and talking to accused in his such capacity. As per learned defence counsel, no other school official of said school has been examined in order to drive home the fact that Sh. Parimal Rai was acting as Vice Principal on the relevant date. Call details record of landline number of said school have also not been collected.
11.29 Sh. Rao has, however, stated that since mobile phone in question had been seized when accused Kesha Ram was arrested, it is hardly of any concern because the conscious possession of such mobile phone clearly indicates that he had been using said mobile phone and burden rather lies on him to prove to the contrary. As already noticed, such mobile phone was never produced before the Court during the trial. Out of curiosity, court had called for mobile device in question from the malkhana of CBI in the interregnum. It was produced in unsealed condition and since it was having an old port of charging and since the mobile had been seized way back in the year 2009 and was found completely discharged, same could not be switched on.
11.30 Verification call was made only once i.e. at 1.05 pm. 11.31 Surprisingly, such CDR shows two calls made at 1:04:16 hours, each of 300 seconds duration. Many other calls have been shown 'in double'. No system or software would show the same call twice while automatically generating print out. Thus the contents of such CDR are not believable, even an inch.
11.32 Be that as it may, CDR does not serve the requisite purpose and there is not enough of evidence to show that accused Kesha Ram was CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 48 of 55 subscriber of mobile number 9868072053. Therefore, it is not very clear as to whom complainant had conversed with during such calls.
CONCLUSION 12.0 Let me see the cited precedents before dropping the curtain.
12.1 As per Sh. Rao, no criminal case would be foolproof and Court should not give any weightage to minor and trivial contradictions and discrepancies. In this regard, he has relied upon State of UP Vs. M.K. Anthony AIR 1185 SC 48. He has contended that while appreciating the evidence of any witness, the court is required to ensure whether the evidence, read as a whole, appears to have a ring of truth or not. Relying upon Mukhtiar Singh Vs. State of Punjab AIR 2016 SC 3100, he has asserted that no true witness can escape from making some discrepant details and these should not be given any mileage. Sh. Rao has also referred to Koli Lakhmanbhai Chanabhai v. State of Gujarat, AIR 2000 SC 210 and Shyamlal Ghosh v. State of West Bengal, AIR 2012 SC 3539 wherein the Hon'ble Supreme Court has held that the testimony of a hostile witness is not liable to be wholly rejected and can be relied upon to the extent it supports the version of the prosecution.
12.2 I agree that no case would ever be foolproof. However, in a serious criminal trial like the present one, evidence of all the trap witnesses requires a very minute and scrupulous assessment. The evidence must be tested for its inherent consistency or inherent inconsistency in reference to the account as stated by one witness on being cross checked with the account as stated by the other. Thereafter, probative value of the evidence is to be put into scales for a cumulative evaluation. Degree of proof cannot be stated in mathematical CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 49 of 55 units, but the guiding principle that the evidence must point only towards the guilt and should exclude innocence, must never be lost sight of. Reference be made to Subhash Chand Chauhan vs C.B.I. 117 (2005) DLT 187.
12.3 Sh. Rao has further contended that every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the Act and if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)(d) of the Act. He has reiterated that demand stands proved and it is also clear that notes were recovered from the car of Mr. Jain and thus even the acceptance and recovery stand proved.
12.4 It rather appears to be a strange and unique case. The person, who demands, does not accept the bribe despite ample opportunity and the person from whom, the recovery has been shown, had never demanded the bribe earlier.
12.5 Additionally, as per defence, mere recovery of the currency notes, which is, even otherwise, shrouded with mystery, will not bring home the offence under either of the sections as demand of illegal gratification is sine- qua-non to constitute said offences and unless there is proof of demand of illegal gratification, the proof of acceptance will not follow. Reliance has been placed upon B. Jayaraj vs. State of Andhra Pradesh [(2014) 13 SCC 55] and P. Satyanarayna Murthy vs. District Inspector of Police and another [(2015 (9) SCALE 724].
12.6 The picture which emerges from my foregoing discussion does not seem to be very encouraging and rosy, at least, from the perspective of prosecution.
CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 50 of 5512.7 There is no firm evidence that A-1 was user of mobile in question or was the speaker at the other end. Such CDR has been discarded for the reasons already discussed in earlier part of the judgment.
12.8 Electronic evidence, in such type of matters, proves to be very handy. Any conversation which is recorded during any such bribe transaction gives a very deep insight for assessing demand and acceptance. It rather reconstructs the entire scenario and virtually takes us back to the spot like a time machine. For the reason best known to the CBI, primary gadget i.e. DVR was held back. Contents were transferred to another device without bothering to adhere to the mandatory requirement of law and, therefore, such device has no real worth. Transcription has been prepared half-heartedly and that too from investigation copy. Manner in which the contents were transferred to these cassettes has also left a clear chance for anyone to tamper with and edit the contents. CBI should have taken enough of precaution to plug any such possibility. Any such audio piece can be altered and, therefore, stringent precautions are required to be taken for its handling and preservation . In the case of Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143, Apex Court has rightly remarked that evidence of voice identification is, at best, suspect, if not, wholly unreliable. It has also been observed that it is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction and, therefore, Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. Thus, I am persuaded to exclude the electronic evidence in toto.
12.9 Since the original DVR has been held back and the transfer to cassette is not supported by any certificate under Section 65B Indian Evidence Act and since even the transcription has been made in a very incautious manner, I will not be able to give any real importance to alleged cassettes and the transcription. Defence is, therefore, not unjustified in CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 51 of 55 placing reliance over judgments given in Anvar P.V., Girwar Singh, Harpal and Sonu@Amar (supra). Moreover, in entire such conversation, there are no specific words showing that Kesha Ram had demanded bribe of Rs. 1.30 lacs and agreed to accept not less than Rs. 1 lac. This means that verification memo and the deposition of complainant is not in harmony with the alleged conversation.
12.10 It also seems that no discreet inquiry was made either against A-1 Kesha Ram or A-2 R.K. Jain before formation of trap team. Moreover, it is intriguing as to how CBI had divine knowledge that complainant would come to CBI office with a complaint and they would be requiring independent witnesses. There was no reason for them to have made any preparation in this regard prior to 14.05.2009 or calling for independent witnesses. However, letter Mark PW13/DX indicates to the contrary.
12.11 Needless to reiterate that there is not enough of coherence amongst the testimony of prosecution witnesses which has created a strong doubt in the mind of the court. As per the specific case of prosecution, Sh. Sant Lal Bhardwaj had been deputed to act as shadow witness but his evidence is nothing but hearsay. He did not see or hear anything himself which may be suggestive of any demand either on the part of Kesha Ram or for that matter qua the alleged acceptance on the part of accused R.K. Jain. As per prosecution case, bribe money was recovered from the dashboard of Santro car of A-2 by PW15 P.S. Verma but he is blissfully ignorant in this regard. He rather seems very specific and certain in claiming that he himself had not recovered any such bribe amount from the dashboard. Thus, testimony of both the independent witnesses has put a big question mark over the veracity of prosecution story. These independent witnesses contradicted, quite substantially, their previous statements and as a result thereof, their credit was considerably, if not wholly, shaken. Some stray CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 52 of 55 unimpeached parts of their deposition, having not much relevancy, would not give any real impetus to prosecution. On the most crucial aspects of they being witness to bribe-transaction and recovery of bribe money from the car, they both have faltered and given irreparable tremors to the very foundation of the case.
12.12 In P. PARASURMI REDDY VS. STATE OF AP 2011 (VIII) SCALE 625, state had not been able to explain as to why the accused did not accept the bribe when he and complainant were alone in the office. Here also, there is no explanation as to why A-1 did not accept any money from complainant either when he met him en route or when they both were chatting in the office for quite some time and when the office was wearing a deserted look. If at all, he was interested in bribe, he would not have let such wonderful opportunity perish and bite the dust.
12.13 There is one more important facet of the matter. Here, A-1 was on inimical terms with A-2. He may think of entrapping him but would not sail with him. I cannot rule out a distinct possibility that perhaps A-1 somehow wanted to get A-2 entangled in the present case to settle his personal score and with such objective in mind, he never, himself, accepted any money despite having ample opportunity. Be that as it may, conspiracy theory stands flattened in view of the strained and bitter relationship between the two. On 14.05.2009, they both were never seen, together, as co-conspirators.
12.14 Testimony of complainant, in itself, does not look sufficient enough for handing out conviction. At most of the places, in cross-examination, it is found recorded by the court that he was taking undue long in replying the questions. He was also carrying bunch of papers for refreshing his memory. His oral testimony does not gel with the recorded conversation. It is also not CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 53 of 55 clear as to why, when he had been clearly instructed to pay the bribe on demand, he did not pay the same to A-1 either when he had come on a motorcycle or in his office when he kept sitting with him. It is difficult to read his version with the version of shadow witness. Their versions are diametrically opposite to each other.
12.15 It is not clear as to from where the accused were eventually caught- whether from the car or in the lawn or from office of A-1 or office of A-2. As per verifying officer Mr. Yogesh, on receiving signal, they all rushed towards office cabin of A-1 where complainant revealed that bribe had been accepted just then. As per TLO, when he received missed call, his team immediately reached near the car, not inside the office cabin, and they saw A- 2 standing near the car who, as per complainant, had accepted the bribe there. None of the CBI official and independent witnesses, surprisingly, saw the bribe-transaction at all despite being in the vicinity.
12.16 Moreover, there was no reason for CBI team to have roughed up the accused.
12.17 Sealing has lost its sanctity as shadow witness Sh. Sant Lal has denied having been entrusted with any seal. This naturally affects the veracity and correctness of all such documents on which seal impression was put and the pullandas which were sealed. Signing of documents, not then and there but later, also smacks of mismanagement and malafide.
12.18 It is aptly said that in a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. Distance between "may be true" and "must be true" is quite large and divides vague conjectures from sure conclusions and court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The presence of CC No. 532258/2016 CBI Vs. Kesha Ram & anr. Page 54 of 55 accused in the office at late hour may raise few eye-brows but would not itself brand them as bribe-recipients.
12.19 The prosecution is required to cover said distance by adducing clear, cogent and unimpeachable evidence. In the instant case, the material contradictions in prosecution evidence cast a shadow of doubt upon the prosecution story and render the same unreliable and untrustworthy to a large extent.
12.20 As an upshot of my foregoing discussion, I am compelled to give benefit of doubt to both the accused. Both of them are, therefore, acquitted of all the charges.
12.21 Nonetheless, my conclusion should not automatically sway the Disciplinary Authority in relation to any Departmental Proceedings pending against the accused wherein the evaluation is on a lesser stringent parameter of preponderance of probabilities, instead of proving the case beyond shadow of doubt.
Announced in open Court (Manoj Jain)
Today 28th November, 2017 Special Judge (PC Act)(CBI-04
Tis Hazari Courts, Delhi.
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