Delhi District Court
State vs Yogender Kumar Arya on 9 August, 2023
IN THE COURT OF SANJEEV KUMAR MALHOTRA
SPECIAL JUDGE: (PC ACT): (ACB-01):
RADC: NEW DELHI
CC No.343/2019
CNR No.DLCT11-001866-2019
FIR No. : 22/2013
U/s : 7/13 POC Act
PS : ACB
State VERSUS Yogender Kumar Arya
S/o Sh. Sube Singh
R/o H. No. C-1143, LIG Flats,
Loni Road, Shahdara, Delhi-93.
Date of Institution : 31.10.2019
Date of Arguments : 09.08.2023
Date of Judgment : 09.08.2023
JUDGMENT
1. Brief facts of the present case, as per the charge-sheet are that on 11.11.2013, complainant Alimuddin Qureshi gave a hand written complaint to Insp. Meghraj, ACB regarding demand of bribe by Constable Joginder. The gist of the complaint is that the complainant is doing the business of property on commission basis. Two cases of knife were registered against him at PS Kashmere Gate and Hauz Khas, in which he has been acquitted, but constable Joginder stops him at any place and used to make a demand of bribe for not implicating him in a case. Joginder was demanding bribe of Rs.10,000/- for the last 15-20 days from his mobile no.9818759440 on mobile no.9911955668, and on his refusal, FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 1 of 46 he scaled down the bribe amount to Rs.4000/- and today he has called him alongwith bribe of Rs.4000/- at Tal Katora Bus Stand at 03 O'clock. He is against giving bribe and brought Rs.2500/- i.e. 2 GC notes of Rs.1000/- and 1 GC note of Rs.500/-. Action be taken upon his complaint and he got written this complaint from Ajay Kumar.
2. Insp. Meghraj called the panch witness Deepak Kumar in his cabin, who after going through the complaint and verifying the facts from the complainant, satisfied himself and thereupon also signed on the complaint. Pursuant to the said complaint, raid proceedings were initiated and at about 02:45 pm, accused Constable Yogender Kumar Arya alighted from a bus on a road from the side of egyarah murti and proceeded towards the complainant and panch witness, who were standing at RML Bus Stand. He started talking with complainant and in the meantime, some movements of hands took place between them and thereupon panch witness gave pre-determined signal and accused Yogender Kumar Arya was caught red handed while accepting bribe of Rs.2500/- i.e. two GC notes of Rs.1000/- and one GC notes of Rs.500/-, which were smeared with the phenolphthalein powder.
3. During the course of investigation, on 14.02.2014, complainant Alimuddin Qureshi handed over two CDs to Insp. Rahul, who played those CDs in the office computer in the presence of panch witness Baburam Singh regarding the telephonic conversation dated 05.11.2013 between Ct. Yogender Kumar and complainant, in which, the conversation of Ct. Yogender Kumar while demanding Rs.10,000/- as well FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 2 of 46 as asking the complainant to provide gifts or amount for purchasing the gifts is appearing. The complainant also informed Insp. Rahul that the voice recordings appearing in both CDs were recorded through mobile phone of his friend. On 28.04.2014, voice samples of accused Ct. Yogender Kumar and complainant Alimuddin were deposited at FSL Rohini and the FSL gave its report dated 15.03.2016, according to which, the voice exhibit of speaker marked Exhibit-Q1 and Exhibit- S1 are the voice of same person i.e. Alimuddin and the voice exhibit of speaker marked Exhibit-Q2 and Exhibit-S2 are the voice of same person i.e. Yogender Kumar Arya and no indication of any form of alteration in audio recordings is found.
4. After completion of investigation, on 31.10.2019, charge-sheet was filed against accused under Section 7/13 of POC Act. Thereafter, cognizance of offence was taken on 13.11.2019 and charge for the offences under Section 7/13 (1)
(d) of Prevention of Corruption Act punishable u/s 13 (2) of PC Act was framed against accused on 11.03.2020.
5. In order to prove its case, prosecution has examined 24 witnesses in all. The brief summary of testimonies of the prosecution witnesses is as under:
6. PW-1 is Retd. SI K. L. Meena, who deposed that on 11.11.2013, he was working as Duty Officer in PS ACB and on that day, he received a rukka sent by Insp. Megh Raj through Ct. Sanjay Yadav, on the basis of which, he recorded the present case FIR i.e. Ex.PW-1/A and made an endorsement on rukka i.e. Ex.PW-1/B. He further deposed that after FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 3 of 46 registration of FIR, he sent the copy of FIR and original rukka to Insp. Rahul through Ct. Sanjay Yadav.
7. PW-2 is ASI Jagdish Kumar, who deposed that on 28.04.2014, he was posted as constable in ACB and on that day, as per instructions of IO, he took the case property i.e. three sealed pulandas duly sealed with the seal of RHL alongwith sample seal and FSL form, from MHC(M) PS Civil Lines and deposited the same at FSL, Rohini through RC no. 84/21/14. He further deposed that after depositing the case property, he handed over the case acknowledgement slip and copy of RC to MHC(M) PS Civil Lines.
8. PW-3 is HC Deb Singh, who deposed that on 30.01.2019, as per direction of IO, he went to malkhana of PS Civil Lines and obtained sealed exhibits of case property sealed with the seal of Dr. C. P. Singh, FSL, Delhi and deposited the same at FSL, Rohini Delhi and handed over acknowledgement receipt and copy of RC to MHC(M).
9. PW-4 is Sh. Santosh Kumar Meena, DCP, P & L, who deposed that in the year 2019, he was posted as DCP Security (HQ), New Delhi and received request for providing sanction u/s 19 of PC Act against Yogender Kumar Arya. He further deposed that earlier prosecution sanction u/s 19 of PC Act against Yogender Kumar Arya was given by Sh. Hibu Tamang, DCP Security, HQ, New Delhi, but as certain more evidences emerged during investigation after providing sanction by Sh. Hibu Tamang, DCP, a request letter for providing sanction was again made before him. PW-4 deposed that he perused all the documents and evidences i.e. FIR, complaint, statement of FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 4 of 46 complainant u/s 161 Cr.P.C as well as u/s 164 Cr.P.C., statement of witnesses, FSL opinion etc. collected during investigation and after applying his mind, being the competent authority to remove the accused from his services, he accorded sanction against accused Yogender Kumar Arya dated 25.09.2019 i.e. Ex. PW-4/A. 9.1. In his cross-examination, PW-4 deposed that vide letter dated 30.01.18, the then ACP/HQ requested DCP, ACB to provide draft sanction proforma i.e. Ex.PW-4/DA. He denied the suggestion that he was not competent to accord sanction or that he had mechanically signed the same.
10. PW-5 is ASI Satish Kumar, who deposed that in the year 2013 and 2014, he was posted as MHC(M) PS Civil Lines, New Delhi. He further deposed that on 11.11.2013, case property and personal search articles were deposited in the Malkahana vide serial no.39 & 40 of Malkahna register no.19 i.e. Ex.PW-5/A and Ex.PW-5/B. PW-5 further deposed that on 21.11.2013, one sealed bottle RHW-I was sent to FSL, Rohini through Ct. Anil Kumar vide RC no.157/21/13 i.e. Ex.PW-5/C and copy of acknowledgement receipt i.e. Ex.PW-5/D. He further deposed that on 21.01.2014, the remnant of case property alongwith FSL result were received through Ct. Shyam Lal which he deposited in the Malkhana. PW-5 further deposed that on 28.04.2014, he also sent three sealed pulandas of present case through Ct. Jagdish to FSL, Rohini vide RC no.84/21/14 i.e. Ex.PW-5/E and made an entry in the Malkhana register. He further deposed that on 14.02.14, Insp. Rahul deposited two CDs sealed with the seal of RHM and he FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 5 of 46 made an entry in this regard in register no.19 i.e. Ex.PW-5/G.
11. PW-6 is Insp. Ashish Kumar, who deposed that on 28.02.2017, investigation of present case was assigned to him and during investigation, on 31.05.2017, complainant Alimuddin Qureshi joined the investigation and told him that mobile no.9911955668 was earlier in the name of his neighbour Ms. Jafri, which he later on got converted/registered in the name of his wife Ms. Shahjahan Qureshi. He also made enquiries from complainant regarding the original device/mobile on to which recording was made by him, but complainant told him that the recording was made by the mobile phone of his friend, which have been returned by him and now he cannot produce the same. PW-6 further deposed that during investigation, he received posting details of accused Yogender Kumar Arya from DCP, North District i.e. Ex.PW-6/A. 11.1. In his cross-examination, PW-6 deposed that he asked the complainant to provide address and whereabouts of Ms. Jafri, but he could not provide the same. PW-6 admitted that the CAF of mobile no.9911955668 was already collected by previous IO, in which, complete address and photocopy of voter ID Card of Ms. Jafri were available, but he did not independently verify about the existence of Ms. Jafri at the address given in the CAF and photocopy of her Voter ID Card. He confirmed that he did not inquire from the service provider of mobile no.9911955668 so as to prove that the said mobile number was in fact later on registered in the name of Ms. Sahajahan Qureshi, wife of complainant. PW-6 further FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 6 of 46 confirmed that complainant did not provide him the particulars of his friend, whose mobile phone was allegedly used by him for recording as well as the particulars of the shop from where he got the CD of the recording prepared. He confirmed that he did not examine/record the statement of Shahjehan Qureshi regarding her ownership of the SIM of mobile number 9911955668.
12. PW-7 Sh. Pawan Singh, Nodal Officer, Vodafone Idea Limited, who brought attested copy of CAF of mobile number 9911955668, which was issued in the name of Ms. Jafri i.e. Ex. PW-7/A. He also brought the CDR of above mobile number from period 10.10.13 to 11.11.13 running into one page i.e. Ex.PW-7/B and proved his certificate u/s 65-B of Indian Evidence Act as Ex.PW-7/C. 12.1. In his cross-examination, PW-7 deposed that draft proforma of Section 65-B Indian Evidence Act certificate was drafted by their legal team and forwarded to him on mail and he took the printout of same after filling the particulars of present case regarding abovesaid mobile number. He further confirmed that the aforesaid mobile number was registered in the name of Ms. Jafri wife of Mr. Nishar Ahmed R/o 442-F, Gali no.3, D block, Nehru Vihar, Delhi-94.
13. PW-8 is Sh. Ajay Kumar, Nodal Officer, Bharti Airtel Limited, who deposed that Sh. Chandrasekhar Tiwari, the then Nodal Officer had submitted the attested copy of CAF of mobile number 9818759440, which was issued in the name of Yogender Kumar i.e. Ex.PW-8/A. He further deposed that CDR of above mobile number from 10.10.13 to 11.11.13 FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 7 of 46 running into 54 pages was also submitted i.e. Ex. PW-8/B. PW-8 further deposed that Chandrasekhar Tiwari also issued certificate u/s 65-B of Indian Evidence Act in respect of mobile number 9818759440 i.e. Ex.PW-8/C. He also brought the certified copy of CAF and CDR of above mobile number i.e. Ex.PW-8/D and Ex.PW-8/E as well as his certificate u/s 65-B of Indian Evidence Act in support of the documents i.e. Ex.PW-8/F. 13.1. In his cross-examination, PW-8 deposed that their server is installed at Noida and it is not in his control. He further deposed that he is not aware about the process and functioning of the server. He further deposed that he has not brought the original CAF and voluntarily deposed that it was lying in their warehouse and is currently not traceable.
14. PW-9 is ASI Shyam Lal, who deposed that on 21.10.14, upon the instructions of IO, he went to FSL Rohini and collected one sealed parcel sealed with the seal of FSL DELHI KLV and one sealed envelope containing report no. FSL2013/C-8807 and deposited the sealed parcel in the malkhana of PS Civil Lines and handed over the sealed report to IO.
15. PW-10 is ASI Anil Kumar, who deposed that on 21.11.2013, upon the instructions of Insp. Rahul, he went to Malkhana of PS Civil Lines and obtained one sealed bottle having mark of RHW-I, sample seal of MRG, FSL form and some documents vide RC no.157/21/13 and deposited the same at FSL, Rohini. He further deposed that after return, he handed over the acknowledgement and copy of RC to FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 8 of 46 MHC(M).
16. PW-11 is Dr. C. P. Singh, Assistant Director (Physics), FSL, Rohini, who deposed that on 28.04.2014, three sealed parcels were received in the office of FSL and on opening the first parcel already marked Exhibit-Y, one DVD of Sony was found and it was marked as Exhibit-1 in the laboratory. He further deposed that the said DVD containing audio file and the speaker starts with " han. main alimuddin bol raha hun..." was marked Exhibit-Q1 and the speaker starts with "han ji bol.. aacha.." was marked as Exhibit-Q2. PW-11 deposed that on opening the second parcel already marked Exhibit-SVA, one audio cassette make Sony was found which was marked as Exhibit-2 and the audio cassette was found containing specimen speech sample of Alimuddin which was marked as Exhibit-S1. He further deposed that on opening the third parcel, which was already marked Exhibit-SVY, one audio cassette make Sonic was found which was marked as Exhibit-3 and the audio cassette was found containing specimen speech sample of Yogender Kumar Arya which was marked as Exhibit-S2.
16.1. PW-11 deposed that on auditory analysis of recorded speech sample of Exhibit-Q1 and S1 and subsequent acoustic analysis of speech sample using Computerized Speech Lab, it was found that the voice exhibits of speaker marked Exhibit- Q1 are similar to the voice exhibits of speaker Exhibit-S1 in respect of their acoustic cues and linguistic and phonetic features. He further deposed that on auditory analysis of recorded speech sample of Exhibit-Q2 and S2 and subsequent FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 9 of 46 acoustic analysis of speech sample using Computerized Speech Lab, it was found that the voice exhibits of speaker marked Exhibit-Q2 are similar to the voice exhibits of speaker Exhibit-S2 in respect of their acoustic cues and linguistic and phonetic features. He proved his detailed report in this regard as Ex.PW-11/A. PW-11 further deposed that on 30.01.2019, one sealed parcel was received in the office of FSL and on opening the same, it was found containing one DVD of Sony, which was marked as Exhibit-1. He further deposed that on auditory analysis by critical listening and subsequent waveform and spectrographic analysis of the relevant audio recordings of DVD Exhibit-1, no indication of any form of alteration in the audio recording was found and he proved his report in this regard as Ex.PW-11/B. 16.2. In his cross-examination, PW-11 deposed that he prepared the waveform and spectrograph of the exhibits i.e. Ex.PW-11/D1 (colly). He confirmed that the recording in the cassette were in analogue form and same were converted to digital format for examination. To a specific question, as put by Ld. Defence counsel, PW-11 replied that he had undergone training at CIIL, Mysore in Phonetics for two weeks and acoustic is one of the subject taught in Physics. He also voluntarily deposed that the training is part of the process to become an expert in a particular field. He confirmed that he did not demand original recordings or recording device from the investigating agency in present case and denied the suggestion given by Ld. Counsel that no definite opinion regarding the continuity/alteration or tampering can be given FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 10 of 46 without examining the original recordings or recording device. He confirmed that he had not given any opinion about the query no.1 of the forwarding letter received from investigating agency i.e. Ex.PW-11/D3. He voluntarily deposed that he had given report in this regard which is already Ex.PW-11/B. He deposed that as per forwarding letter, the storage device received by him was having mark CD-1 and there is no mention in his report about availability of any such marking CD-1 on the DVD and voluntarily deposed that he had given laboratory marking i.e. Exhibit-1.
17. PW-12 is HC Baljeet Singh, who deposed that on 30.01.2019, he was posted as MHC(M) at PS Civil Lines and on that day, as per instruction of IO, one pulanda sealed with the seal of Dr. CP SINGH FSL DELHI, sample seal, FSL form, forwarding letter alongwith RC no.21/21/19 and other documents were handed over to HC Deb Singh for depositing the same at FSL, Rohini and he made an entry in this regard in register no.19 i.e. Ex.PW-12/A. He further deposed that after depositing the exhibits at FSL, HC Deb Singh returned back and handed over the copy of RC and acknowledgement of acceptance to him i.e. Ex.PW-12/B and Ex.PW-12/C. PW-12 further deposed that on 24.04.2019, one sealed parcel alongwith one sealed envelope containing FSL result was received at Malkhana through HC Deb Singh and he made an entry in this regard in register no. 19 i.e. Ex. PW-12/D. He further deposed that on 23.01.2020, on the instructions of IO, two sealed pulandas alongwith sample seal of RHL and forwarding letter were sent to FSL through HC Jitender vide FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 11 of 46 RC no.14/21/2020 and he made an entry in this regard i.e. Ex.PW-12/E. He further deposed that HC Jitender handed over the copy of RC and acknowledgement of case acceptance to him i.e. Ex.PW-12/F and Ex.PW-12/G. PW-12 deposed that on 28.02.2020, two sealed parcels bearing FSL seal i.e. Parcel-1, Exhibit-1, Parcel-2, Exhibit-2 were deposited in the malkhana by SI Suresh. He further deposed that the parcel Exhibit-2 was little torn and SI Suresh informed him that the said envelope was got torn when he was taking out the said from the dickey of his motorcycle. PW-12 affixed cello tape on the torn portion of the parcel and lodged a DD no.42 dated 28.02.2020 in this regard i.e. Ex.PW-12/H. He further deposed that FSL result was received in a sealed envelope and the same was handed over to the IO by SI Suresh.
17.1. In his cross-examination, PW-12 deposed that the details of exhibits and documents sent to FSL were mentioned in road certificates. He confirmed that as per entry at serial no.39 on Ex.PW-12/DA, the case property was deposited by Insp. Meghraj of ACB.
18. PW-13 is Dr. Kanak Lata Verma, Assistant Director (Chemistry), Regional FSL, New Delhi, who deposed that on 21.11.13, the exhibit of present case i.e. one sealed glass bottle marked RHW-1 sealed with the seal of MRG was received in FSL. She further deposed that on chemical and TLC examination, exhibit RHW-I was found to contain sodium carbonate and phenolphthalein and proved her report in this regard as Ex.PW-13/A. 18.1. In her cross-examination, PW-13 confirmed that she FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 12 of 46 prepared worksheets during examinations of present case. She confirmed that as per her report, the period of examination is mentioned as 27.11.13 to 28.11.13. She deposed that she was assisted by her Assistant Sh. Madhup Kumar Singh in present case and various particulars were filled up by her in her worksheet. To a specific question, as put by Ld. Defence counsel regarding fading of pink colour in one of the bottle i.e. Ex.P4, PW-13 replied that the chemical change is the cause of fading colour as oxidation reaction has occurred due to presence of air in the empty space of bottle.
19. PW-14 is Jeevan Prakash, who deposed that on 21.04.2014, he was Head Clerk at Directorate of Education and was assigned duties as panch witness. He further deposed that on that day, he accompanied Insp. Rahul alongwith one Alimuddin Qureshi (complainant) to FSL, Rohini for getting recorded the voice sample of complainant. PW-14 further deposed that they reached at FSL, Rohini, where voice sample of complainant Alimuddin Qureshi was recorded in an audio cassette. He further deposed that one copy of said recording was also prepared in another cassette and the said cassettes were sealed and marked as SVY and SVY-1. He alongwith complainant had signed the aforesaid cassette before sealing. He further deposed that both the cassettes were converted in two separate pulandas and were taken in to police possession vide memo i.e. Ex.PW-14/A. To a leading question, as put by Ld. Addl. PP for State, he deposed that complainant Alimuddin Qureshi was illiterate and the text prepared for the purpose of recording of his sample voice was firstly read over by the IO FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 13 of 46 on the instructions of FSL officials and later on it was repeated by Alimuddin for the purpose of recording his sample voice.
19.1. In his cross-examination, PW-14 deposed that the specimen voice of Alimuddin was recorded once and that he was not shown any identity proof of Alimuddin either at ACB or at FSL. He was re-examined by Ld. Addl. PP for State, in which, he deposed that the assistance of FSL official was taken during the recording of voice sample of the complainant.
20. PW-15 is Sh. Sanjeev Kumar, Assistant Section Officer, DSSSB, who deposed that on 04.02.2014, he was posted as UDC at Directorate of Education, Old Secretariat, Delhi and was assigned duties as panch witness. He further deposed that on that day, he accompanied Insp. Rahul alongwith accused Yogender Kumar Arya to FSL, Rohini, where voice sample of accused was taken in an audio cassette which was marked as SVY and copy of recording was done in another cassette which was marked as SVY-1. He further deposed that he put his signature on both the cassettes and same were converted into pulandas and taken into police possession vide seizure memo i.e. Ex.PW-15/A.
21. PW-16 is Sh. Maan Singh, who deposed that he does not remember the exact date, but in the year 2014, he was posted as Head Clerk in the Directorate of Education, Old Secretariat, Delhi and was assigned the duty as panch witness and was called at ACB. He met with the IO of present case, who had taken his signature on a CD and accused was also sitting there in the office of ACB.
FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 14 of 4621.1. PW-16 was cross examined by Ld. Addl. PP for State, but he denied that he gave his statement u/s 161 Cr.PC i.e. Mark-X. He deposed that on 02.04.2014, he visited the ACB office when he was assigned the duty of panch witness and IO introduced him to the accused, who disclosed his name as Yogender Kumar Arya. He admitted that accused had given his consent to give the sample of his voice for identification i.e. Ex.PW-16/A.
22. PW-17 is Sh. Babu Ram, who deposed that on 14.02.14, he was posted as Mechanical JE at Irrigation Flood Control Department, Laxmi Nagar, Delhi and on that day, he was assigned the duty of panch witness. He further deposed that he was called by an Inspector at ACB, where one person was sitting beside the Inspector. PW-17 further deposed that the inspector apprised him that two CDs were brought by the said person which were required to be packed and seized and for that purpose his signatures were required. He further deposed that he as well as the said Inspector signed on both the CDs and thereafter those CDs were packed and sealed. He identified his signature on the said DVD i.e. Ex.PW- 17/Article-II.
22.1. PW-17 was cross-examined by Ld. Addl. PP for State, but he denied that he gave any statement u/s 161 Cr.PC i.e. Mark-Y to the police. He further denied that complainant Alimuddin handed over two CDs alongwith the copy of transcription of the audio recording contained in CDs or that complainant stated that the audio recording was done by him on 05.11.2013, whereby accused Ct. Yogender Kumar Arya FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 15 of 46 demanded and accepted bribe from him. CD-1 was also played on the computer of the Court and after hearing the recording, the witness deposed that he does not remember whether this recording was played before him on 14.02.2014.
23. PW-18 is ACP Meghraj, who deposed that on 11.11.13 he was posted at ACB as Inspector and on that day, complainant Alimuddin came at ACB and gave a written complaint before him which was written in Hindi. He further deposed that on that day Deepak Kumar was on duty as panch witness at ACB and he called him and gave the written complaint to him, who after reading the complaint, signed on it and he also attested the complaint i.e. Ex. PW-18/A. PW-18 deposed that complainant Alimuddin Qureshi brought two GC notes of Rs.1000/- denomination and one GC note of Rs.500/- denomination, which were to be given as bribe to accused. He further deposed that GC notes were checked by panch witness and serial numbers of same were recorded in pre-raid report. He applied phenolphthalein powder on the GC notes and gave demonstration to complainant and panch witness and also explained the importance of powder to them. He further deposed that thereafter, complainant put the powder smeared GC notes in his shirt's pocket and he directed the complainant that he should keep the panch witness with him and also directed the panch witness to hear the talks and see the transaction between the complainant and accused and after confirmation, he would give signal to the raiding party by waving his right hand two times over his head. PW-18 further deposed that at about 02:00 pm, he collected the raid box and FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 16 of 46 left the ACB office alongwith raiding party, complainant and panch witness in two vehicles and at about 02:35 pm, they all reached at the parking of Talkatora stadium, which was 200 meters away from the bus stand. PW-18 deposed that he again directed and briefed the complainant and panch witness and thereafter, they were asked to proceed towards Talkatora bus stand near foot over bridge and the other members of the raiding party took their positions in a scattered manner.
23.1. PW-18 deposed that at about 02:45 pm, one bus came from the side of egyarah Murti and stopped in front of Talkatora bus stand, from which, one person alighted and straightway headed towards the complainant. He further deposed that the said person started talking with the complainant and he saw that there was movement of hands between the complainant and the said person and thereafter the panch witness gave the pre-determined signal to the raiding party, upon which, they all went near the said person and apprehended him. He further deposed that the panch witness pointed out towards the accused and stated that the he had demanded and accepted Rs.2,500/- from the complainant Alimuddin Qureshi. PW-18 deposed that he gave his introduction to the accused and also told him that he had accepted bribe of Rs.2,500/- from the complainant and same is to be recovered from him. PW-18 offered the search of the raiding party prior to the search of the accused, but the accused refused to take the search of the raiding party. He further deposed that the panch witness also apprised him that after alighting from the bus, the complainant had wished him FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 17 of 46 (namaste kiya) and the accused had stated to the complainant "jo baat hui thi, rakam lekar aaye ho " and the complainant replied that he had brought Rs.2,500/- with him. PW-18 deposed that thereafter on his instructions, the panch witness got recovered the amount of bribe from the right hand of accused Yogender Kumar Arya. He further deposed that the recovered GC notes were checked by the panch witness and tallied with the serial numbers mentioned in the pre-raid report and thereafter, the GC notes were taken into police possession vide seizure memo Ex.PW18/B. He further deposed that right hand wash of accused was also taken in colourless sodium carbonate, which turned pink and thereafter the pink colour solution was kept in two transparent glass bottles and sealed with the seal of MR and marked as RHW-I and RHW-II and seized vide memo Ex.PW-18/C. PW-18 deposed that thereafter he made an endorsement on raid report and called Insp. Rahul at the spot and handed over him the sealed exhibits, documents and accused. He also handed over the rukka to Ct. Sanjay Yadav for getting the case registered.
23.2. In his cross-examination, PW-18 confirmed that complaint Ex.PW-18/A was against one seepahi Joginder and that he did not seek any clarification from the complainant till the time case was with him as to why complaint was lodged against Joginder and not Yogender Kumar Arya. To a specific question, as put by Ld. Defence counsel, PW-18 confirmed that he did not make any independent enquiry so as to verify secretly whether Ct. Joginder or the accused Yogender Kumar Arya was in a position to favour or disfavour the complainant.
FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 18 of 46He further confirmed that there is no reference about presence of SI Bal Kishan, Ct. Sanjay Yadav and Ct. Inder Singh in the writings related to pre-trap proceedings i.e. part of Ex.PW- 18/D. To a specific question, as put by Ld. Defence counsel, PW-18 deposed that the phenolphthalein powder was arranged from the raid box which was lying under the custody of DO. He further confirmed that accused Yogender Kumar Arya was not in possession of any official file with him when he was apprehended at the spot.
24. PW-19 is Sh. Deepak Kumar, who deposed that on 11.11.2013, he was posted as Craft Instructor at Department of Training and Education and on that day, was assigned duties of panch witness at ACB. He further deposed that he reached at ACB office at 09:00 am and at about 11:00/11:30 am, complainant came at ACB and handed over a complaint to Insp. Meghraj. PW-19 further deposed that the complaint was shown to him by Insp. Meghraj and he read the contents of same. He further deposed that complainant had also stated that the said complaint was got written by his friend. PW-19 further deposed that complainant had also brought Rs.2500/- (two GC notes of Rs.1000/- and one GC note of Rs.500/- denomination) with him which were to be given as bribe to accused and Insp. Meghraj gave demonstration after applying powder on the GC notes and explained that in case anyone would touch the powder smeared notes and his hands are washed in a solution, the colour of the solution changes to red. He further deposed that thereafter, he alongwith raiding team left the ACB at about 02:00 pm in two vehicles for footover bridge between FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 19 of 46 Talkatora Stadium and RML hospital. PW-19 deposed that the vehicles were parked on the side of road before 100 meter from footover bridge and raiding team took their position. He further deposed that he alongwith complainant Alimuddin waited for accused at the bus stand and Alimuddin was sitting beside him at the bus stand. PW-19 further deposed that after about 10 minutes, accused alighted from a bus, thereupon, complainant went near the accused and he also followed the complainant. He further deposed that accused stated to the complainant "mere paise laay ho" and he replied the he was not having money and pointed out towards him while saying that PW-19 is his friend and he is giving after taking from him. He further deposed that thereafter, he took out powder smeared notes from his pocket and handed over to the complainant, who handed over the same to accused. He further deposed that thereafter, Insp. Meghraj came there and apprehended the accused and the powder smeared notes were recovered from the pocket of pant of accused by Insp. Meghraj. He further deposed that handwash of accused was taken, which turned red and the red solution was transferred in two glass bottles and thereafter accused was taken back to ACB office. He also returned back alongwith raiding team and several documents were prepared at ACB by Insp. Meghraj.
24.1. PW-19 was cross examined by Ld. Addl. PP for State and he confirmed that the serial numbers of GC notes which were produced by the complainant, were written in pre-raid report prepared by Insp. Meghraj. He further confirmed that after his hands were dipped in colourless solution during FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 20 of 46 demonstration, the solution turned pink. He denied the suggestion that after the demonstration, the powder smeared notes were handed over to the complainant, who put the same in his right side pocket of his shirt. He admitted that he was directed that he should remain with the complainant and see and hear the talks between the accused Yogender Kumar and complainant and if he become satisfied that the accused had demanded bribe from the complainant and had accepted the bribe from him, he should give signal to raiding party by waving his hand two times over his head.
24.2. PW-19 denied the suggestion that when the accused demanded bribe from the complainant, the complainant took out the powder smeared GC notes from the pocket of his shirt and handed over to the accused, who accepted the same with his right hand or that he pointed out to the IO that the accused was holding the bribe in his right hand. He confirmed that the right hand wash of accused was taken by the RO at the spot in colourless solution, which had turned pink.
24.3. In his cross-examination by Ld. Defence counsel, PW- 19 deposed that he was informed one day prior to the raid about his duty at ACB on next day and volunteered that some other official was deputed for duty at ACB on the date of raid and suddenly he was deputed. To a specific question as put by Ld. Defence counsel, PW-19 deposed that RO did not take any explanation for bringing Rs.2500/- only whereas the demand was of Rs.4000/- as per the complaint. PW-19 deposed that he did not tell the RO/IO that after meeting the complainant, the accused asked the complainant "mere paise laaye ho" and FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 21 of 46 voluntarily deposed that nobody asked him about the conversation at the spot which had taken place between the complainant and the accused. However, he also denied the suggestion that no such wordings "mere paise laaye ho" were ever spoken by the accused at the spot.
25. PW-20 is complainant Amimuddin Qureshi, who deposed that about 7-8 years back, his friend Ajay Gupta took him to ACB and left him there while stating that he will return after 1 or 1 ½ hours and also stated him that "kisi ko pakadwana hai". PW-20 deposed that after 1-1 ½ hours, his friend returned at ACB and took him inside the office and asked him to sign on some blank papers. He further deposed that after that, they both went downstairs and after some time, they went upstairs and he was again asked to sign 2-3 papers, which he signed. He further deposed that thereafter, they left the ACB office. PW-20 further deposed that after 2-3 days, he again visited the office of ACB on his friend's request, where he was asked to sign some papers, on which something was written and thereafter he left the ACB office. He identified his signatures on the complaint, raid report, seizure memo of GC notes, seizure memo of exhibits, seizure memo of CDs, cassettes and other documents. He also identified the transcription (running in to 11 pages) as well as certificate u/s 65-B of Indian Evidence Act as Ex.PW-20/A and Ex.PW-20/B. 25.1. PW-20 was cross-examined by Ld. Addl. PP for State but he denied the suggestion that the complaint Ex.PW-18/A was written by his friend Ajay Kumar at his instance and the contents of same was read over to him by his friend. He denied FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 22 of 46 making any statements dated 11.11.2013, 14.02.2014, 21.04.2014, 19.12.2016 and 31.05.2017 to the police i.e. Mark-X, Y, Z, Z-1 and Z-2. Ld. Addl. PP for State drawn the attention of witness towards accused with a suggestion that he is the same person against whom the complaint Ex.PW-18/A was given for the demand of bribe and later on he was caught red handed on 11.11.2013 while accepting bribe of Rs.2,500/- from him, but he denied the suggestion while deposing that he had seen the accused first time at Security Headquarters when he had gone there in response to a notice, where inquiries were made from him. He was confronted from his statement Mark-X, Y, Z, Z-1 and Z-2, but he denied the material facts of his statements as recorded in those statements.
25.2. PW-20 was re-examined by Ld. Addl. PP for State U/s 311 Cr.PC and witness identifies his signature on statement U/s 164 Cr.P.C. dated 07.06.2019 i.e. Ex. PW-20/C. 25.3. In his cross examination by Ld. Defence counsel, he deposed that he gave his statement U/s 164 Cr.P.C as dictated by the police official who took him to the court of Ld. Judge and told that he should give statement as per his narration otherwise he would be sent to jail.
25.4. PW-20 was again re-examined by Ld. Addl. PP for State but he denied the suggestion that he gave his statement Ex.PW-20/C voluntarily and not under the dictation of police officials or that he was never threatened by the police official to depose as per his lines else he would be sent to jail.
26. PW-21 is Sh. Ajay Kumar, who deposed that he does FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 23 of 46 not know any person in the name of Alimuddin Qureshi and never visited at ACB.
26.1. PW-21 was cross examined by Ld. Addl. PP for State, but he denied making statements u/s 161 Cr.P.C. dated 16.12.2013 and 19.12.2016 i.e. Mark-X1 and X2. He further deposed that complaint Ex.PW-18/A is not in his handwriting. He also denied his statement as recorded i.e. Mark-X2 to the effect that on 19.12.2016, he visited at ACB alongwith Alimuddin or that Alimuddin produced one CD stated to have contained the recording of telephonic conversation between Alimuddin and one police official namely Yogender Kumar Arya or that Alimuddin got transferred the telephonic conversation recording in his presence in a CD from a private shop. PW-21 denied the suggestion that he has been won over by the accused and that is why he is intentionally and deliberately not disclosing the true facts of the case.
27. PW-22 is Insp. Rahul, who deposed that on 11.11.2013, he was apprised by Insp. Meghraj to join the raid as IO in present case. He further deposed that at about 02:00 pm, he alongwith raiding team left the office of ACB in government vehicles for raid and at about 02:35 pm, they reached near Talkatora Stadium and parked their vehicles. He further deposed that the RO alongwith complainant and panch witness proceeded for the raid and he was left with the vehicles alongwith the drivers. PW-22 further deposed that at about 04:30 pm, RO called him at the spot and briefed him about the raid and handed over the accused, seized articles and documents prepared at the spot to him. He further deposed that FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 24 of 46 he made enquiries from the complainant and panch witness and prepared site plan at the pointing out of complainant and panch witness. PW-22 deposed that accused was in possession of some official files i.e. Ex. PW-22/B, which he seized vide memo already A-1. He further deposed that copy of FIR and rukka was handed over to him by Ct. Sanjay and he wrote the details of case FIR on the sealed exhibits and documents.
27.1. PW-22 further deposed that on 21.11.2013, he sent the sealed exhibits i.e. handwash to FSL and also received the FSL result during his tenure of investigation. He further deposed that on 14.02.2014, complainant Alimuddin Qureshi visited the ACB and handed over two CDs stated to have contained telephonic conversation between him and accused dated 05.11.2013 alongwith transcription got prepared by him. He further deposed that in the presence of panch witness Ram Babu Singh, both the CDs were played in the computer of ACB and the contents were checked and compared with the transcription provided by the complainant. PW-22 further deposed that he asked the complainant to produce the original recording instrument or the SD card, but the complainant did not produce the same while stating that the phone in which the recording was done was of his friend and the same has been returned to him. He further deposed that the complainant also stated that the recording have been erased inadvertently from the memory card.
27.2. PW-22 deposed that on 04.04.2014, he called the accused at ACB and took him to FSL alongwith panch witness Sanjeev Kumar for getting recorded specimen voice of FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 25 of 46 accused, where he provided two blank cassettes to FSL authorities for the said purpose. He further deposed that the specimen voice sample of the accused was recorded by the FSL experts in one of the cassette provided by him and copy thereof was prepared in the another cassette provided by him. PW-22 deposed that both the cassettes were converted into pulanda separately and were seized by him vide seizure memo already Ex.PW15/A. He further deposed that on 21.04.2014, he called the complainant at ACB and took him to FSL alongwith panch witness Jeevan Prakash for getting recorded his specimen voice, where he provided two blank cassettes to FSL authorities for the said purpose. He further deposed that the specimen voice sample of the complainant was recorded by the FSL experts in one of the cassette provided by him and copy thereof was prepared in the another cassette. PW-22 deposed that as the complainant was illiterate and was not able to read and write the Hindi language, the text of the transcripts was read by him and repeated by the complainant at the time of recording of his voice sample and this fact was also mentioned in the seizure memo by him.
27.3. PW-22 deposed that on 28.04.2014, on his direction all the exhibits related to the sample voice alongwith the questioned CD were sent to FSL for examination purpose. He collected the CDRs and CAFs of mobile phones of accused and the one used by the complainant. He further deposed that the mobile phone used by complainant was registered in the name of Ms. Jafri who was not traceable despite efforts. He further deposed that during the investigation, it was revealed to FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 26 of 46 him that complaint Ex.PW18/A was written by friend of the complainant namely Sh. Ajay Kumar Gupta at his instance and dictation, thereafter, he examined Ajay Kumar Gupta and recorded his statement. He further deposed that on 19.12.2016, he obtained certificate U/s 65B Indian Evidence Act already Ex.PW20/B from the complainant in support of recordings provided by him in CDs.
27.4. In his cross-examination, PW-22 confirmed that he did not conduct any inquiry as to whether accused was anyway involved in the investigation of any of the case of complainant. He further deposed that he did not obtain permission from the court for obtaining the voice sample of accused and that he does not remember whether any warning of adverse inference was given by him in writing to the accused before recording of his sample voice. He further confirmed that on 14.02.2014, 04.04.14 and 21.04.14, he did not hand over his seal to anybody after his use and cannot assign any reason as to why seal was not given by him to the panch witnesses on these three dates after completion of sealing and seizure procedure. He further confirmed that duty officer of ACB is the custodian of phenolphthalein powder and the raid box. He further admitted that signature of Sh. Ajay Kumar Gupta was not available on complaint Ex.PW-18/A being the scriber of the said document. He deposed that he did not obtain any opinion about authenticity of transcript Ex.PW-20/A from FSL.
28. PW-23 is SI Sanjay Yadav, who deposed that on 11.11.2013, at about 02:00 pm, he alongwith Insp. Meghraj, complainant Alimuddin Qureshi, panch witness and other FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 27 of 46 members of raiding party left the ACB office for raid and at about 02:35 pm, reached near Dr. Ram Manohar Lohia Hospital. He further deposed that the official vehicles were parked in the parking of Talkatora Stadium. PW-23 deposed that Insp. Meghraj briefed the complainant and the panch witness and asked them to proceed towards near Foot over bridge, Talkatora Stadium. He further deposed that Insp. Rahul and drivers of the vehicle were directed to remain there and other members of the raiding team followed the complainant and panch witness. PW-23 deposed that the raiding party took the position near Bus stand and at about 02:45 pm, one bus came from the side of Egyarah Murti, from which, one person alighted and he started talking with the complainant. He further deposed that after some time the panch witness gave predetermined signal, thereupon Insp. Meghraj alongwith raiding party proceeded towards the said person and apprehended him. He further deposed that on inquiry the name of said person was revealed as Ct. Yogender Kumar Arya, thereupon Insp. Meghraj offered the search of the raiding party to the accused, prior to his search, which he refused. He further deposed that the accused was having Rs.2500/- in his right hand. He further deposed that upon direction of Insp. Meghraj, panch witness recovered the amount of Rs.2500/- from the accused. He further deposed that Insp. Meghraj tallied the serial numbers of the currency notes from the pre- raid report and found the same to be correct. Thereafter, Insp. Meghraj prepared a tehrir and send him to get the case FIR registered. He further deposed that at about 04 pm, he left the FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 28 of 46 spot alongwith rukka and at about 05:15 pm reached at ACB and handed over the tehrir to Duty Officer for registration of case FIR. PW-23 further deposed that after sometime the raiding team also reached at ACB and he handed over the tehrir and copy of FIR to IO/Insp. Rahul.
28.1. In his cross-examination, PW-23 deposed that he was standing at a distance of about 15-20 feet from Insp. Meghraj, who took his position at about 10 meters from the spot. He confirmed that he did not see any transaction between accused and complainant and he was standing near Footover bridge. He further confirmed that he handed over the copy of FIR and original tehrir to Insp. Rahul at about 05:45 pm.
29. PW-24 is Insp. D. P. Singh, who deposed that on 10.04.2018, investigation of present case was assigned to him and in July, 2018, he received sanction u/s 19 of PC Act against accused from the competent authority. He further deposed that on 30.01.2019, he got collected sealed CD from the Malkhana of PS Civil Lines and send the same to FSL through HC Deb Singh seeking opinion regarding continuity and no tampering in the CD and in April, 2019, he received the result already Ex.PW-11/B from the FSL, according to which, there is no indication form of alteration in the audio recording. PW-24 further deposed that thereafter he prepared the charge- sheet and filed the same in the Court.
29.1. In his cross-examination, PW-24 admitted that he did not ask the complainant to provide the address and whereabouts of Ms. Jafri in whose name mobile no. 9911955668 was registered. He further confirmed that he did FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 29 of 46 not personally visit the address mentioned on the photocopy of ID proof of Ms. Jafri so as to verify the correctness. To a specific question as put by Ld. Defence counsel, PW-24 deposed that he had inquired from the complainant about the name of his friend on whose mobile phone he recorded the alleged conversation between him and accused, but he did not record his statement in this regard or mentioned about any such inquiry from the complainant in any of his inner case diary. He further admitted that various cases were pending against the complainant and that it did not come to his notice that accused was either witness or IO of any of the case of complainant.
30. After completion of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. and all the incriminating evidence was put to him which he denied as false and incorrect and stated that he is innocent and has been falsely implicated in the present case. He has taken a plea that on 11.11.2013, he collected his documents related to issuance of uniform from Traffic Lines, Teen Murti for delivering it to Uniform Store Incharge at his posting in Main Security Lines, Vinay Marg, Chanakyapuri and for that purpose, he was waiting for a bus at RML hospital stand, where from, he was lifted and falsely implicated in this case. Accused has further stated that he had not demanded any money from anybody or from Alimuddin. He was neither a witness in any of the case of Alimuddin nor ever remained posted in the area where Alimuddin was residing. Accused has also taken a plea that on 11.11.13, he was on reserved duty FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 30 of 46 from 08:00 am to 02:00 pm at President' Cell, Security Main Lines. He opted to lead evidence in his defence.
31. Accused examined four defence witnesses in his defence. DW-1 is HC Satender, who brought the summoned record i.e. FIR no. 486/2022 of PS Hauz Khas u/s 25/54/59 Arms Act dated 06.08.2022, registered against Alimuddin S/o Mohd. Mohsin. Copy of same is Ex.DW-1/A.
32. DW-2 is ASI Chander Mohan Sharma, who deposed that the summoned record has been destroyed as per the order of DCP, Security vide order dated 23.06.2021. Copy of same is Mark-DW-2/A.
33. DW-3 ASI Sanjay Kumar, who brought the summoned record i.e. attested copy of FIR no.29/2013 PS Shahdara registered against Alimuddin S/o Munshi Khan i.e. Ex.DW- 3/A.
34. DW-4 is ASI Ashok, who brought the summoned record i.e. RC no. 546/21 dated 11.11.13 of Teen Murti Traffic Line i.e. Ex.DW-4/A. He also brought the register related to Lower Sub-ordinate, Second Hand Register dated 10.10.2013 to 10.09.2014 in which the relevant entry encircled in red at point A was made at page no.18 i.e. Ex.DW-4/B.
35. Arguments have been advanced by Mohd. Zafar Khan, Ld. Chief PP for the State and by Sh. Sanjay Gupta, Ld. Defence Counsel for accused. I have also perused the written submissions as filed on behalf of accused.
36. Ld. Chief PP for State argued that panch witness Deepak Kumar has specifically deposed that accused made a FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 31 of 46 demand while saying "mere paise laaye ho" and bribe money i.e. powder smeared GC notes were recovered from the accused. It is submitted that although PW-19 has not supported the case of prosecution on some aspects, but his evidence cannot be rejected in toto and same can be accepted to the extent his version is found to be dependable. My attention is drawn in respect of a judgment titled as Khujji @ Surender Tiwari vs. State of MP, 1991 AIR 1853.
37. Ld. Chief PP for State further argued that as per report of PW-13 Dr. Kanak Lata Verma, Assistant Director (Chemistry), the right hand wash of accused i.e. Exhibit RHW-I found to contain sodium carbonate and phenolphthalein. It is submitted that the report of PW-13 also corroborates the version of panch witness that accused accepted the bribe amount which was recovered from his possession.
38. Ld. Chief PP for State further argued that CDRs of mobile phone of accused i.e. 9818759440 i.e. Ex.PW-8/B shows that on the day of raid also, accused had telephonic conversation with the complainant on his mobile no.9911955668. Ld. Chief PP for State further argued that prosecution has proved its case against accused Yogender Kumar Arya beyond reasonable doubt.
39. Ld. defence counsel for accused argued that demand of bribe is 'sine-qua-non' to prove the charge framed against the accused, but prosecution has miserably failed to prove demand of bribe by the accused. It has been submitted that complainant Alimuddin Qureshi has not supported the case of prosecution FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 32 of 46 at all and even he has denied demand of bribe or any telephonic conversation with the accused and it is a settled law that mere filing of complaint is not a proof of demand. Ld. Defence counsel further argued that panch witness Deepak Kumar is also a useless witness as he has not supported the case of prosecution on material aspects.
40. Ld. defence counsel further argued that it is a settled law that demand of bribe should be for doing or forbearing to do any official act, but in the present case, prosecution has failed to prove that accused was demanding bribe for favouring or disfavouring the complainant or there was a motive with accused to demand the bribe. It has been submitted that as a matter of fact, the prosecution could not collect any evidence that accused was any way involved in the investigation of any of the cases lodged against the complainant.
41. Ld. defence counsel further argued that the prosecution has failed to prove that mobile no.9911955668 was ever owned or used by the complainant. It is submitted that there is no investigation at all that the aforesaid mobile number was later on allegedly got transferred by the complainant in the name of his wife Ms. Shahjehan Qureshi. It is submitted that no opinion was sought by IO about continuity or tampering of the recording and as such the recording cannot be read in evidence.
42. Ld. defence counsel further argued that IOs ACP Meghraj, Insp. Rahul and Insp. D. P. Singh conducted the investigation in an unfair manner. It is submitted that FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 33 of 46 complaint Ex.PW-18/A shows that it was made against one Ct. Joginder whereas the name of the accused is Ct. Yogender Kumar Arya, but the Raid Officer or the subsequent IOs have not sought any clarification from the complainant in this regard. Ld. defence counsel has relied upon the authorities reported as Punjab Rao vs. State of Maharastra, 2002 (10) SCC 371 SC; State of Maharastra vs. Dnyaneshwar Laxman Rao Wankhede, 2009 (4) RCR (Cr.) 217 SC; Om Prakash vs. State & Ors. (CBI), 2009 (3) RCR (Cr.) 293 Delhi; State of Karnataka vs. Ameer Jaan, AIR 2008 SC 108; Jahan Singh vs. CBI The State, 2021 (1) JCC 35; State vs. Dr. Maroti, 2022 (2) LRC 725 SC; B. Jayraj vs. State of AP, 2014 (2) RCR (Cr.) 410 SC; State of Kerala and Anr. vs. C. P. Rao, 2011 (3) CCC (SC) 182; Neeraj Dutta vs. State (Govt. of NCT of Delhi), Crl. Appeal no.1669/09; Nilesh Dinkar Paradkar vs. State of Maharastra, (2011) 4 SCC 143; Ram Singh and Ors. vs. Colonel Ram Singh, AIR 1986 SC 3; Sudhir Chaudhary etc. vs. State (NCT of Delhi), AIR 2016 SC 3772; Mahavir Prasad Verma vs. Dr. Surinder Kaur, AIR 1982 SC 1043; Sita Ram vs. CBI, 2020 (2) RCR (Cr.) 801 Delhi; Ninkhtiar Singh vs. State, 2017 (3) RCR (Cr.) 694 SC; Pyare Lal vs. State, I (2008) DMC 806; Naveen vs. State (NCT of Delhi), 2017 (1) LRC 398 (Del); Roshan Lal Saini & Anr. vs. CBI, 2011 (1) JCC 102; Raj Kumar vs. State (NCT of Delhi), 2011 (4) JCC 2818; P.C. Mishra vs. CBI, 2021 [2] JCC 879 and Manpreet Singh & Anr. vs. State, 2004 [1] JCC 1.
43. Before appreciating evidence in this case, it is important to note that even in a case under Prevention of FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 34 of 46 Corruption Act, 1988, the onus is on the prosecution to prove the fundamental requirement of criminal law viz., the guilt of an accused must be proved beyond all reasonable doubts. In this regard, reliance is placed upon State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede (supra) and State of Punjab Vs. Madan Mohan Lal Verma 2013 (7) LRC 34 (SC). In both these cases, it was held that the foundational facts must be established by the prosecution. It was also held that even while invoking the provision of section 20 of PC Act, the court is required to consider the explanation offered by the accused, if any, only on the touch stone of preponderance of probability and not on the touch stone of proof beyond all reasonable doubt.
44. It is well settled that it is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is also well settled that suspicion however strong can never take the place of proof. There is a long distance between the fact that accused 'may have committed the offence' and 'must have committed the offence', which is to be proved by the prosecution by adducing reliable and cogent evidence. Presumption of innocence is recognized as human right which cannot be wished away. (Refer; Narender Singh & anr. Vs. State of M.P. (2004) 10 SCC 699; Ranjtsingh Brahamjeet Singh Sharma Vs. State of Maharashtra & Ors. (2005) 5 SCC 294; Ganesan Vs. Rama S. Raghuraman & Ors. (2011) 2 SCC 83 and; State of U.P. Vs. Naresh & Ors. (2011) 4 SCC 384).
FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 35 of 4645. The Constitution Bench of Hon'ble Supreme Court in Neeraj Dutta vs. State, Govt. of NCT of Delhi, Crl. Appeal no. 1669 of 2009 with regard to the nature and quality of proof necessary to sustain a conviction for offences under Section 7 or 13 (1) (d) (i) & (ii) of the PC Act, summarized as under :-
" 68. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d)
(i) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 36 of 46 the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue.
In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 37 of 46 servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point
(e) as the former is a mandatory presumption while the latter is discretionary in nature."
46. With these principles in mind, let me examine as to what extent prosecution has succeeded in proving the charge against the accused.
47. As per complaint Ex.PW-18/A, accused was demanding bribe of Rs.10,000/- from the last 15-20 days by making telephone calls from his mobile no.9818759400 on mobile no.9911955668 of complainant for not implicating him in a case, and on his refusal, accused scaled down the demand of bribe to Rs.4000/-, for receiving of which, he called the complainant on 11.11.2013 at 03 O'clock at Talkatora Bus Stand. However, when complainant appeared in the witness box as PW-20, he became totally hostile with regard to facts as mentioned in complaint or regarding his statements recorded u/s 161 Cr.P.C. during investigation. He was cross examined by Ld. Addl. PP for State at length, but he denied the facts mentioned in complaint Ex.PW-18/A while deposing that his friend Ajay Gupta took him to ACB while saying " kisi ko FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 38 of 46 pakadwana hai". He was confronted from his complaint Ex.PW-18/A as well as his subsequent statements Mark-X, Y, Z, Z-1 and Z-2, but he denied having made such statements. Statement of complainant was also recorded U/s 164 Cr.P.C. but he deposed that he gave his statement as dictated by the police official, who took him to the court of Ld. Judge and that he was told to give statement as per narration of that police official, otherwise he would be sent to jail.
48. In the complaint Ex.PW-18/A, it is mentioned that the said complaint was got written from one Ajay Kumar. Prosecution examined Ajay Kumar as PW-21, but he has also not supported the case of prosecution. He deposed to the extent that he does not know any person in name of Alimuddin Qureshi (complainant). He was also cross examined by Ld. Addl. PP for State, but he denied having made any statements u/s 161 Cr.P.C. i.e. Mark X-1 and Mark X-2. He specifically denied that he wrote the complaint of Alimuddin Qureshi as per his narration.
49. One other circumstance to prove the demand of bribe by accused as per complaint Ex.PW-18/A is that accused made demand of bribe from his mobile phone no. 9818759440 on the mobile phone no.9911955668 of complainant. PW-7 Sh. Pawan Singh, Nodal Officer, Vodafone Ltd. proved the CAF of mobile no. 9911955668, according to which the said SIM was subscribed in the name of Ms. Jafri. PW-8 Sh. Ajay Kumar, Nodal Officer, Bharti Airtel proved the CAF of mobile no.9818759440, which is in the name of Yogender Kumar i.e. FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 39 of 46 accused. The CDRs of the aforesaid mobile phones from 10.10.2013 to 11.11.2013 are proved as Ex. PW-7/B and Ex. PW-8/A, which also shows that telephonic calls were also made from the mobile phone of accused Yogender Kumar i.e. 9818759440 on the mobile phone number 9911955668 on the day of raid, but there is no evidence on record to show that the aforesaid mobile phone was in possession of complainant Alimuddin Qureshi. Ms. Jafri has not been examined by the prosecution to show that the said mobile phone was being used by complainant during the relevant time or that it was transferred in the name of wife of complainant namely Ms. Shahjehan Qureshi. PW-22 Insp. Rahul and PW-24 Insp. D. P. Singh though admitted that photocopy of Election ID Card of Ms. Jafri was provided by the service provider, but they did not personally verified her address. Thus, an important link in the chain of evidence is missing so as to prove the fact that the mobile number 9911955668 was being used by complainant during the period when accused made calls to demand the bribe for not implicating the complainant in any case.
50. PW-19 Sh. Deepak Kumar, who joined the raid proceedings as a panch witness is another material witness to prove the demand of bribe and acceptance thereof by the accused during the raid, but he has also not supported the case of prosecution on some material aspects. As per testimony of Raid Officer i.e. PW-18 ACP Meghraj, he after giving the demonstration of phenolphthalein powder, explained its specialty and thereafter, complainant put the powder smeared GC notes in his shirt's pocket and he also directed the panch FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 40 of 46 witness to hear the talks between the complainant and accused and after confirmation to give signal to the raiding party by waving his right hand two times over his head. However, PW- 19 Deepak Kumar deposed that he took out the powder smeared GC notes from his pocket and handed over the same to complainant, who then handed over the powder smeared GC notes to the accused. Not only this, regarding demand of bribe by the accused, PW-19 deposed that accused stated to the complainant "mere paise laaye ho" while the case of prosecution is that accused asked the complainant in presence of panch witness "jo baat hui thi vah rakam lekar aaye ho". The fact regarding demand of bribe as deposed by panch witness that "mere paise laaye ho" shows that the accused was demanding his own money from the complainant and not the bribe amount. PW-19 has also not supported the case of prosecution regarding recovery of bribe amount from the hand of accused by him. He denied the suggestion as put by Ld. Addl. PP for State that he pointed out to Insp. Meghraj that the accused was holding the bribe amount in his right hand or that the amount of bribe was recovered by him from the right hand of accused. On careful scrutiny of the testimony of PW-19 Deepak Kumar, it does not appears to be helpful to the case of prosecution to prove the demand of bribe by accused.
51. In order to prove demand of bribe by the accused, prosecution is also relying upon CD Ex.P-1, which as per case of prosecution was handed over by complainant Alimuddin Qureshi during the investigation on 14.02.2014 in the presence of panch witness i.e. PW-17 Babu Ram containing the FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 41 of 46 recordings of telephonic conversations between accused and complainant regarding demand of bribe. Source and authenticity are the two hallmarks pertaining to electronic record. Complainant i.e. PW-20 Alimuddin Qureshi denied the suggestion of Ld. Addl. PP for State that he recorded the conversations from the mobile phone of his friend and prepared the CD. When the CD Ex.P-1 was played on Court computer, PW-20 stated that said recording does not contain his voice. PW-21 Ajay Kumar, in whose presence, as per case of prosecution, complainant Alimuddin Qureshi handed over the CD and got transferred the telephonic conversation from a private shop, denied having made any such statement during investigation. PW-17 i.e. panch witness Babu Ram has also not supported the case of prosecution and during his cross examination by Ld Addl. PP for State, he denied the suggestion that complainant Alimuddin Qureshi handed over two CDs alongwith the copy of transcription of the audio recording contained in the CDs bearing his signature.
52. The original device i.e. mobile phone through which the complainant recorded the telephonic conversation with the accused was not produced by the complainant during the investigation. PW-11 Dr. C. P. Singh, Assistant Director (Physics), FSL, Rohini, who examined the CD Ex.P-1 with the specimen voice sample of complainant and accused, has admitted in his cross examination that he did not give any opinion about continuity or about no tampering in his report Ex.PW-11/A, as no such opinion was sought by the investigating agency. However this deposition of PW-11 is not FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 42 of 46 as per record. The forwarding letter Ex.PW-11/D3 having letter no.4989/RC-22/13/RHL/ACB/GNCTD dated 28.04.2014 pursuant to which, PW-11 gave his report Ex.PW-11/A shows that IO had made query no.1 to the fact that whether CD1 is unedited or otherwise or whether there is any tampering in track continuity of this exhibit or otherwise. As the reply to query no.1 was not given by the expert, therefore, exhibits were sent again and vide report Ex.PW-11/B, PW-11 opined that there is no indication of any form of alteration in audio recording i.e. DVD mark 'Ex.-1'.
53. The CD Ex.P-1 was also played in court computer, but after hearing the audio conversation, PW-20 i.e. complainant Alimuddin Qureshi deposed that the said recording does not contain his voice. Complainant also deposed that when he again visited the office of ACB, he was asked to sign on some documents and he is not aware regarding the facts of present case. Complainant also denied the suggestion of Ld. Addl. PP for State that he recorded the conversation regarding the demand of bribe from the mobile phone of his friend or prepared CD. PW-24 Insp. D. P. Singh, who filed the charge- sheet, admitted in his cross examination that he did not inquire from the complainant about the particular of the shop from where the CD of the recording was got prepared by him.
54. In absence of original device i.e. mobile phone through which recording was done, for the admissibility of any secondary evidence in digital form, the certificate under section 65B of Indian Evidence Act is a mandatory FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 43 of 46 requirement. The requirement of certificate u/s 65-B of Indian Evidence Act is to rule out any tampering with the electronic evidence produced on record. Reliance is placed upon judgment of Hon'ble Apex Court titled as Arjun Pandit Rao Khotkar Vs Kailash Kushanrao Gorantyal & Ors. in Civil Appeal no. 20825-20826 of 2017. As the complainant has denied the recording of any telephonic conversation between him and accused and deposed that he was asked to sign on some documents at ACB and that he is not aware regarding the fact of present case, his certificate u/s 65-B of Indian Evidence Act i.e. Ex.PW-20/B is not reliable in support of transfer of data from original device to the CD Ex.P1.
55. Thus, the foundational facts to prove the charge has not been proved beyond reasonable doubt by the prosecution and therefore, there is no need to devolve upon the defence of the accused.
56. In view of above, I am of the considered opinion that prosecution has failed to prove its case against the accused, mainly due to following reasons:-
(i) Complainant has not supported the case of prosecution at all.
(ii) Panch witness i.e. PW-19 Deepak Kumar has not supported the case of prosecution on material aspects.
(iii) PW-21 Sh. Ajay Kumar, who as per prosecution case wrote the complaint Ex.PW-18/A has not supported the case of prosecution. He has denied FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 44 of 46 about writing of complaint Ex.PW-18/A.
(iv) There is no investigation or evidence brought on record that mobile no.9911955668 on which accused made a call for demand of bribe was in possession of complainant, as the subscriber of the aforesaid SIM was one Ms. Jafri.
(v) Original device i.e. mobile phone through which the complainant recorded the telephonic conversation was not produced before the Court.
(vi) There is no investigation about the shopkeeper from whom the complainant got transferred the data regarding telephonic conversation in a CD.
(vii) Panch witness i.e. PW-17 Babu Ram, in whose presence as per case of prosecution complainant handed over the CD to the IO, has not supported the case of prosecution. He also denied that his statement Mark-Y u/s 161 Cr.P.C. was recorded by the IO.
(viii) The fact of demand and acceptance of bribe has not been proved even by way of electronic evidence or circumstantial evidence.
57. If the evidence adduced by the prosecution is of such a nature that room still exists that every reasonable possibility of his innocence has not been excluded, the accused would be entitle to benefit of doubt. Therefore, in view of aforesaid discussion, I am of the view that prosecution has failed to prove its case against the accused for the offence u/s 7/13 (1) FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 45 of 46
(d) of PC Act, punishable u/s 13 (2) of PC Act, 1988 beyond reasonable doubt, accordingly, accused Yogender Kumar Arya is given benefit of doubt and as such, acquitted from the charges framed against him. His bail bond stands cancelled and surety is discharged.
58. File be consigned to record room after due compliance.
Digitally signed by SANJEEV SANJEEV KUMAR
KUMAR MALHOTRA
MALHOTRA Date:
2023.08.09
Announced in the open court 15:36:40 +0530
on 09 th August, 2023 (Sanjeev Kumar Malhotra)
Special Judge (PC Act) (ACB-01)
Rouse Avenue District Courts
New Delhi
FIR No.22/2013, PS ACB State vs. Yogender Kumar Arya Page 46 of 46