Delhi District Court
Cbi vs 1. R. K. Tiwari on 13 March, 2012
IN THE COURT OF SHRI SANJEEV JAIN: SPECIAL JUDGE (PC ACT), CBI2
NEW DELHI DISTRICT, PATIALA HOUSE COURT, NEW DELHI
CC No. 42/03
RC No. DAI/2003/A0027/CBI/ACB/New Delhi
CBI Versus 1. R. K. Tiwari
S/o Shri Shiv Shankar Tiwari
Junior Engineer, MCD
Office of Executive Engineer (Building)
South Zone, New Delhi
Present Address:
House No.296, SectorI, Vaishali
Ghaziabad (UP)
Permanent Address:
Village & P.O. Validpur, Distt. Mahu (UP)
2. Gulshan Kumar
S/o Shri Madan Lal
R/o I130/1, Gautam Nagar, New Delhi
3. Manoj Kumar Gupta
S/o Shri Hari Ram Gupta
R/o 101A, Yusuf Sarai, New Delhi
Date of FIR : 29.04.2003
Date of filing of Chargesheet : 28.11.2003
Arguments heard on : 15.02.2012
Date of Judgment : 13.03.2012
DAI/2003/A0027/CBI/ACB/New Delhi 1
Appearance:
For prosecution : Shri A.K. Gaba, Ld. Sr. PP and Ms. Geeta Singh Ld. PP
For accused persons : Sh. S. K. Sharma, Adv. for accused R. K. Tiwari and Gulshan
Kumar
Sh. Aman Sareen, Adv. for accused Manoj Kumar Gupta.
J U D G M E N T
1 Brief facts of the prosecution case is that complaint Ex. PW2/A dated 29.04.2003 was lodged with CBI, Anti Corruption Branch by complainant Sh.Sudhir Gupta alleging that he is residing at H. No. F8 Gautam Nagar, near Gulmohar Park, New Delhi and is running a store in name and style of "Shivam Enterprises" for last about 10 years and one Gulshan Kumar owner of iron store, Gautam Nagar, New Delhi was threatening him for last about one and half months by telephonic calls on his mobile phone no. 9818244122 and by visiting at his house that in case complainant paid Rs. 1 lac to him he would allow the continuation of construction work of his house otherwise would get it demolish through MCD, Delhi. Gulshan Kumar had filed false complaint against him on earlier occasions and got demolished the construction of his house through MCD. In complaint Ex. PW2/A he further alleged that previous JE Sh. P. K. Gaur had already transferred. On 28.04.03, he visited the office of MCD, Bldg. Department, Green Park, New Delhi to verify, whether accused Gulshan Kumar had filed any other complaint against him and met accused R. K. Tiwari Jr. Engineer in his office where accused Gulshan Kumar was already present. DAI/2003/A0027/CBI/ACB/New Delhi 2 Accused R. K. Tiwari threatened him if he wanted to continue the construction work at his house and to avoid demolition, he had to pay Rs. 2 lacs as bribe to accused R. K. Tiwari and Gulshan Kumar till the evening of next day. 1.2 When complainant expressed his inability to arrange such a huge amount, accused R. K. Tiwari asked him to pay Rs. 50,000/ by the evening of 29.04.03 and the remaining amount of bribe in two installments. Accused R. K. Tiwari and Gulshan Kumar further threatened him that in case Rs. 50,000/ was not paid by the evening of 29.04.03, they would get demolish his house. 1.3 On the basis of complaint Ex. PW2/A, FIR Ex. PW2/B dated 29.04.03 case was registered. The investigation was entrusted to Inspector Surender Malik of CBI. Inspector Surender Malik constituted a raiding party consisting of complainant including two independent witnesses PW 3 Sh. Ajit Topo and PW11 Indperjit. Complainant produced 30 GC notes of Rs. 1000 denomination each (total Rs. 30,000/) before the Trap Laying Officer (TLO) . The number of GC notes were noted in the handing over memo Ex. PW 2/C (dated 29.04.2003). Pre trap proceedings including application of phenolphthalein powder on the currency notes and explaining the witnesses about the reaction of phenolphthalein powder by giving practical demonstration was completed. The Trap money was handed over to complainant with the direction to hand over the same to the accused on specific demand. PW3 Sh. Ajit Topo was instructed to DAI/2003/A0027/CBI/ACB/New Delhi 3 act as shadow witness and was directed to remain close to the complainant so that he may hear the conversation between complainant and the accused, if any, and observe the proceedings at the spot. PW3 Sh. Ajit Topo was further instructed to give signal by scratching his head with both the hands after transaction of bribe amount is over.
1.4 At about 2:00 PM, as directed, Sh. Sudhir Gupta contacted accused R. K. Tiwari on his mobile phone. The conversation between Sh. Sudhir Gupta and accused R. K. Tiwari was recorded with the help of the digital recorder in presence of independent witnesses. The recorded conversation was heard which confirmed the directions of accused R. K. Tiwari to complainant to pay the bribe amount to accused Gulshan Kumar. During telephonic conversation, accused R. K. Tiwari assured Sh. Sudhir Gupta that if he would pay the bribe amount to accused Gulshan Kumar then no demolition action would be taken against him. After sometime, a telephonic call was received on mobile phone of Sh. Sudhir Gutpa from accused Gulshan Kumar which was also recorded with the help of DVR. During conversation, Sh. Sudhir Gupta informed accused Gulshan Kumar that he had arranged the money as demanded. At about 2:45 PM, Sh. Sudhir Gupta again received a call on his mobile phone from accused R. K. Tiwari and during conversation, accused R. K. Tiwari instructed Sh. Sudhir Gupta that he should ensure the presence of accused Manoj Kumar Gutpa at the time of handing over of the bribe amount to accused Gulshan Kumar otherwise DAI/2003/A0027/CBI/ACB/New Delhi 4 Manoj Gutpa would create problem in future. This telephonic conversation was also recorded in DVR. The data of recorded conversation was transferred into the blank audio cassette in which the specimen voices of both the independent witnesses were also recorded. The said audio cassette was sealed with the seal of CBI.
1.5 As per chargesheet, a technical arrangement was made so that PW Sh. Inderjit may hear the conversation between complainant and accused at the spot. As per this arrangement, sim card of Sh. Sudhir Gupta's mobile was transferred into another mobile instrument of the CBI office and the same was kept on the vibration mode. Another mobile phone was arranged from the CBI office and Sh. Sudhir Gupta's mobile number was fed in this mobile. The function of this technical arrangement, through which conversation done by the holder of mobile phone in vibration mode could be heard through another mobile instrument was explained to all members of the trap team and later on this instrument was handed over to PW Inderjit.
1.6 Trap team reached near the Evergreen Sweet House, Green Park, New Delhi (hereinafter referred as "spot"). TLO Inspector Surender Malik asked complainant Sh. Sudhir Gupta to contact accused Gulshan Kumar and Manoj Kumar Gutpa on their mobile phones and to inform that he was waiting for them at the spot. As per directions of TLO, Sh. Sudhir Gupta and Sh. Ajit Topo took DAI/2003/A0027/CBI/ACB/New Delhi 5 their position inside the Evergreen Sweet House. The other team members took position near the said sweet house. Sh. Sudhir Gupta telephonically contacted accused Gulshan Kumar and informed him accordingly that he was waiting at the spot. Sh. Gulshan Kumar made two calls and asked Sh. Sudhir Gupta to meet him outside the said sweet house. But, as per the direction of TLO, Sh. Sudhir Gutpa remained inside the sweet house.
1.7 At about 4:35 PM, accused Gulshan Kumar and Manoj Gupta came at the spot in Maruti Zen car bearing no. DL9CB1532. The car was driven by accused Manoj Kumar Gupta and accused Gulshan Kumar was sitting on the front seat adjacent to accused Manoj Kumar Gupta. Accused Gulshan Kumar came out of the car and went to Sh. Sudhir Gutpa at the aforesaid sweet house. After 23 minutes, accused Gulshan Kumar came out of the sweet house with Sh. Sudhir Gutpa. PW Sh. Ajit Topo was following them.
1.8 As per chargesheet, accused Gulshan Kumar took Sh. Sudhir Gutpa in the car driven by accused Manoj Kumar Gutpa. Accused Gulshan Kumar occupied the front seat adjacent to accused Manoj Kumar Gutpa whereas complainant Sh. Sudhir Gupta took the rear seat of the car. Members of the trap team took their positions near the car. PW Sh. Ajit Topo also came out of the sweet house and was following accused Gulshan Kumar and complainant Sh. Sudhir Gupta and took his position near the car. PW Sh. Inderjit remained near DAI/2003/A0027/CBI/ACB/New Delhi 6 TLO Inspector Surender Malik and was hearing the conversation between complainant Sh. Sudhir Gupta and accused persons namely Gulshan Kumar and Manoj Kumar Gupta with the help of mobile instrument provided to him. Sh. Indierjit was continuously informing the TLO about the conversation which was taking place inside the car.
1.9 At about 5:45 PM, Sh. Sudhir Gutpa flashed prearranged signal to the trap team from the said car. Members of the trap team rushed towards the said car. On seeing the members of the trap team, Gulshan Kumar came out of the car and ran away from the spot. Inspector A. K. Singh with one Constable was sent to apprehend accused Gulshan Kumar. TLO introduced himself as well as other members of the trap team to accused Manoj Kumar Gutpa and asked, whether he and accused Gulshan Kumar in conspiracy with accused R. K. Tiwari had demanded bribe amount of Rs. 2 lacs from Sh. Sudhir Gutpa and accepted Rs. 30,000/ from him for allowing him to continue the construction and not to demolish his house.
Accused Manoj Kumar Gupta explained that amount of Rs. 30,000/ was put in his kurta pocket by accused Gulshan Kumar. He took out the bribe amount from his left side kurta pocket with his left hand and threw the same on the floor of the said car near the left side front seat.
1.10 PW Sh. Inderjit recovered the tainted bribe amount from the car and the DAI/2003/A0027/CBI/ACB/New Delhi 7 GC notes were tallied with the numbers already noted in he handing over memo. Accused Manoj Kumar Gutpa was directed to dip his left hand fingers in the clourless solution of sodium carbonate in a glass tumbler and on doing so, the solution turned into pink colour. The said solution was transferred into a clean glass bottle which was marked as "LHW" denoting "Left Hand Wash" of accused Manoj Kumar Gutpa. The left side pocket of the white kurta of accused Manoj Kumar Gutpa was dipped in the colourless solution of sodium carbonate, and doing so, the colour of the solution turned into pink colour which was sealed in a clean glass bottle which was market as "LSUKPW" denoting "Left side kurta pocket wash" of accused Manoj Kumar Gupta.
1.11 As the crowd refused to participate in the proceedings and did not disperse, the remaining proceedings were carried out in the room no. 110 of Hotel Grand Sartaj, Green Park, New Delhi. Accused R. K. Tiwari was brought by Inspector A. K. Pandey, who also joined the proceedings.
Inspector A. K. Singh brought accused Gulshan Kumar from his shop to the hotel. TLO asked, as to whether accused Gulshan Kumar demanded and accepted the bribe from Sh. Sudhir Gupta. A colourless solution of sodium carbonate was prepared in a neat and clean glass tumbler and accused Gulshan Kumar was directed to dip his right hand fingers in the said solution, and on doing so, the said colourless solution turned into very light pink colour which was transferred into a neat and clean bottle and was marked as "RHW" denoting DAI/2003/A0027/CBI/ACB/New Delhi 8 "Right Hand Wash" of accused Gulshan Kumar. Another solution of sodium carbonate was prepared in a neat and clean glass tumbler and accused Gulshan Kumar was directed to dip his left hand fingers in the said solution, and on doing so, the said solution turned into very light pink colour which was sealed in another glass bottle and was marked "LHW" denoting "Left Hand Wash" of accused Gulshan Kumar.
1.12 During investigation, it was revealed that (inside the car), after accepting the bribe amount of Rs. 30,000/, on the insistence of Sh. Sudhir Gupta, accused Manoj Kumar Gutpa made a call to accused R. K. Tiwari and informed him about the payment of bribe amount to accused Gulshan Kumar. Then he gave his mobile phone to Sh. Sudhir Gupta and he also informed accused R. K. Tiwari about the payment of Rs. 30,000/ to accused Gulshan Kumar and accused R. K. Tiwari assured him that no action would be taken against his building. 1.13 During investigation, hand washes of accused Manoj Kumar Gupta, Gulshan Kumar and kurta pocket wash of accused Manoj Kumar Gupta were sent to the CFSL for examination and opinion. CFSL has opined that all the washes contained sodium carbonate and phenolphthalein. The specimen voices and questioned voices of accused persons were also sent to CFSL for the opinion of the expert and as per the report of CFSL, the questioned voices had tallied with the respective specimen voices of accused persons. DAI/2003/A0027/CBI/ACB/New Delhi 9 1.14 Files relating to the property in question of Sh. Sudhir Gupta were also also seized on 29.04.03. The sanction for prosecution was granted against accused R. K. Tiwari by the competent authority. Thereafter, chargesheet was filed after completion of investigation.
2 Vide order dated 23.03.2006, Ld. Predecessor framed charges against all the accused u/s. 120 B of IPC r/w Sec. 7 and 13(1) (d) r/w Sec. 13(2) of Prevention of Corruption Act, 1988 (in short PC Act) and separate charge was framed against accused R. K. Tiwari u/s. Sec. 7 and Sec. 13(1)(d) punishable u/s. 13(2) of PC Act, 1988.
Prosecution witnesses 3 In order to prove its case, prosecution has examined has many as 15 witnesses as PW1 Sh. Y. D. Bankata (Retd.) Addl. Commissioner (Engineering, MCD), PW2 Sh. Sudhir Gutpa (Complainant), PW3 Sh. Ajit Topo (Shadow witness), PW4 Dr. C. L. Bansal, Sr. Scientific Officer (chemistry), CFSL, New Delhi, PW5 Dr. Rajinder Singh, Principal Scientific Officer and Head of Physics and Forensic Voice Identification Unit, CFSL, New Delhi, PW6 Sh. R. K. Singh, Nodal Officer, PW7 Sh. Anil Kumar, Asstt. Engineer, Division 18, MCD, Old Hindu Rao College, PW8 Sh. B. B. Jaiswal (Retd. Executive Engineer, South Zone, DAI/2003/A0027/CBI/ACB/New Delhi 10 MCD), PW9 Sh. Pradeep Kumar Goel, Contractor MCD, PW10 Sh. Sukhbir Singh from MTNL, PW11 Sh. Inderjeet (independent witness), PW12 Sh. V. S. Chauhan, Inspector, Directorate of Estate, Nirman Bhawan, New Delhi, PW13 Sh. Deepak Gupta, Sr. Manager (Legal) Vodafone Essar, PW14 Inspector R. C. Garvan (IO) and PW15 Sh. Surender Malik (TLO).
Defence Witnesses 4 DW1 Sh. Anirudh, Record Keeper, Building Deptt. MCD Office, Green Park, New Delhi, DW2 Sh. T. C. Meena, LDC, CBI, ACB, New Delhi and DW3 HC Kesar Singh, CBI Head Office, New Delhi were examined in defence. Statement of accused u/s. 313 Cr. P. C. 5 In statement u/s. 313 Cr. P. C., entire incriminating evidence was put to all the three accused. Accused persons denied the incriminating evidence and pleaded their innocence.
5.1 Accused R. K. Tiwari while denying the incriminating evidence mainly stated that he did not permit the accused to carry out the unauthorized construction of his building and took demolition action against him. To carry on unauthorized construction, complainant in connivance of officials of CBI fabricated the case. He stated that complainant did not get sanction building plan and after this case, he successfully raised unauthorized construction up to DAI/2003/A0027/CBI/ACB/New Delhi 11 five floors and is running a guest house in the residential area. 5.2 In his statement u/s. 313 Cr. P. C. accused Gulshan Kumar mainly stated that he is innocent and has been falsely implicated in the instant case. He also stated that he met accused R. K. Tiwari and Manoj Kumar Gupta for the first time at Sartaj Hotel.
5.3 In his statement u/s. 313 Cr. P. C. accused Manoj Kumar Gupta also denied his role in the commission of offence and pleaded his innocence. Contrary to the version of accused Gulshan Kumar, he admitted his presence with accused Gulshan Kumar at the spot, the meeting of Sh. Sudhir Gupta with accused Gulshan Kumar in his car, delivery of Rs. 30,000/ by Sh. Sudhir Gupta to accused Gulshan Kumar, his arrest at the spot and recovery of Rs. 30,000/ by trap team. He took the defence that complainant Sh. Sudhir Gupta was his childhood friend. He reached at the spot at the request of Sh. Sudhir Gupta to help him. He was not aware about the transaction between Sh. Sudhir Gupta and Gulshan Kumar. When Gulshan Kumar put the amount of Rs. 30,000/ in his pocket, he threw the same towards accused Gulshan Kumar. He also stated that he was not aware about the conversation between complainant and accused Gulshan Kumar and kept quite. Suddenly, the person who came with Sh. Sudhir Gupta i.e. accused Gulshan Kumar started saying that he was smelling something from the GC notes and asked Sudhir Gutpa as to whether he had DAI/2003/A0027/CBI/ACB/New Delhi 12 called the CBI and put the money in his kurta pocket. When he tried to take out the money, the car was stopped which gave an opportunity to accused Gulshan Kumar to run away from the spot. He also stated that he was confident that he was called by Sudhir Gupta, therefore, he did not run away. He denied demand or acceptance of any part of money or his role in the commission of offence. 6 I have heard Ld. Sr. PP for the CBI and Ld. defence counsels for accused persons. I have carefully gone through the testimony of the witnesses, documents, written submissions filed on behalf of accused persons and other material placed on record. I have gone through the judgments referred by the Ld. Prosecutor and Ld. Defence counsels and carefully considered the respective submissions.
Prosecution Evidence 7 PW1 Sh. Y. D. Bankata (Retd.) Addl. Commissioner (Engineering, MCD) proved the sanction for prosecution Ex. PW1/A against accused R. K. Tiwari.
7.1 PW1 stated that he was working as Additonal Commissioner in MCD and was competent to appoint and remove Jr. Engineer, MCD, Bldg. He deposed that a request was received to consider the sanction for prosecution against accused R. K. Tiwari. The request was sent with the statement of witness and other DAI/2003/A0027/CBI/ACB/New Delhi 13 related documents. The material was placed before him and after going through the material placed on record, he was convinced to grant sanction for prosecution. Therefore, he ordered for the sanction vide order Ex. PW1/A. 7.2 Ld. defence counsel for accused R. K. Tiwari assailed the correctness and legality of the sanction for prosecution. It was submitted that PW2 has admitted that he appended the signatures on the draft of the sanction order sent by CBI without making any change which reflects non application of mind. It was further submitted that cross examination of PW1 makes it clear that PW1 did not verify from the records (by calling the files) to assess what action was taken by accused R. K. Tiwari? It was also submitted that as per prosecution case, CFSL reports were received much after the grant of sanction and was not available before the sanctioning authority.
Ld. defence counsel for accused R. K. Tiwari referred Mansukhlal Vithaldas Chahuan V. State of Gujarat, 1997 AIR (SCW) 3478 : in this case, order for sanction was passed by the sanctioning authority mechanically in obedience of mandamus issued by Hon'ble High Court. Therefore, it was held that grant of sanction was not proper. In my opinion, there cannot be any dispute from either side to the principle of law laid down by the Hon'ble Supreme Court. This case is not applicable in the facts of the present case as PW1 has not granted the sanction for prosecution on the directions or under the pressure of any other authority.
DAI/2003/A0027/CBI/ACB/New Delhi 14
In the case of State of Karnataka Vs. Ameer Jan, 2008 AIR (SC) 108, the sanction for prosecution was granted only on the report of IG Police Karnataka. It was held by the Hon'ble Supreme Court that order granting sanction must be demonstrating of the fact that there had been proper application of mind on the part of sanctioning authority. Ld. Counsel also relied upon case titled Bhisham Kumar Vs. State 1999 LE (Del) 37, in respect of his argument that sanction is not an idle formality. Sanction after application of mind by the sanctioning authority is valid otherwise the same should not be accepted.
In my opinion, in the facts of this case, the case of State of Karnataka V Ameer Jan (Supra) is not applicable as entire material was sent to PW1 who gone through the same and then after satisfying himself granted sanction for prosecution. Merely, because the CFSL report was not available at that time or he signed the draft order sent by CBI, conclusion cannot be drawn that sanction was granted without any application of mind.
7.3 The requirement of law is that sanctioning authority should apply independent mind. Sanctioning authority is not required to go into the detailed appreciation of material placed before him but is required to assess the material by taking a prima facie view. If the material has been gone through by the sanctioning authority and after applying his mind independently, sanction has been granted, nothing more is required. Merely, because the draft of the sanction order sent by CBI was signed by the PW1 does not reflect the non DAI/2003/A0027/CBI/ACB/New Delhi 15 application of mind by PW1. PW1 has specifically stated that he had gone through the material placed before him. There is nothing in cross examination to show that sanctioning authority had any ill will against accused R. K. Tiwari. Therefore, there is no reason to doubt the testimony of PW1. PW2 Sh. Sudhir Gupta (Complainant) 8 PW2 Sh. Sudhir Gupta (complainant) supported the prosecution pertaining to his complaint Ex. PW2/A, demand of bribe i.e. Rs. 2 lacs by accused R. K. Tiwari and Gulshan Kumar, his meeting with accused R. K. Tiwari (in his office in presence of accused Gulshan Kumar) to avoid demolition of construction of his house, the settlement of first installment of bribe of Rs. 50,000/ , his visit in CBI office on 29.04.03, production of Rs. 30,000/ consisting of 30 GC notes each of Rs. 1000/, his meeting with SP, CBI Sh. Anurag Garg, entrustment of case to Inspector Surender Malik, lodging of FIR Ex. PW2/B, presence of independent witnesses Sh. Ajit Topo and Sh. Inderjit Singh in pre trap and post trap proceedings, the preparation of handing over memo Ex. PW2/C, the application of phenolphthalein powder on GC notes, the demonstration of working of phenolphthalein powder, the telephonic conversation with accused R. K. Tiwari and Gulshan Kumar in pre trap and during trap proceedings, recording of conversation in DVR and recording of these proceedings in memo Ex. PW2/D. DAI/2003/A0027/CBI/ACB/New Delhi 16 8.1 PW2 also supported the prosecution case on the vital points of trap proceedings pertaining to reaching at spot, presence of shadow witness Sh. Ajit Topo with him, position of TLO and other witness outside the Evergreen Sweet House, his telephonic conversation with accused Gulshan Kumar from Evergreen Sweet House and arrival of accused Gulshan Kumar at Evergreen Sweet House. He also stated that accused Gulshan Kumar took him to Maruti Zen car and accused Manoj Kumar Gupta was already present in the car who started driving the car when accused Gulshan Kumar alongwith complainant sat inside the car. PW2 Sh. Sudhir Gupta specifically stated that accused Gulshan Kumar inquired about the money and when he told that he had arranged Rs. 30,000/ only, he became furious. He stated that on the demand of accused Gulshan Kumar he gave Rs. 30,000/ to him and he counted the money.
8.2 PW2 Sh. Sudhir Gupta further deposed that accused Gulshan Kumar felt that some powder was applied on GC notes, therefore, he put the money in the pocket of white kurta of accused Manoj Kumar Gupta and after stopping of car, he ran away from the spot. PW2 Sh. Sudhir Gupta further stated that accused Gulshan Kumar was apprehended from his shop and was brought to hotel Sartaj, hand washes of accused Gulshan Kumar were taken and were sealed in two separate bottles. He stated that money was thrown inside the car by accused Manoj Kumar Gutpa after taking out the same from his Kurta Pocket. He stated that when he sat in the car with accused Gulshan Kumar and Manoj Kuma DAI/2003/A0027/CBI/ACB/New Delhi 17 Gupta, accused Gulshan Kumar talked to accused R. K. Tiwari and told him about the receipt of amount from him. He also stated that accused Gulshan Kumar offered him to talk on mobile and when he talked to accused R. K. Tiwari, he assured him that no demolition would be carried out. He also supported the prosecution case that he could not switch on the DVR at the spot due to confusion, therefore, conversation at the spot could not be recorded. He further stated that accused R. K. Tiwari was also brought to hotel Sartaj and accused R. K. Tiwari and Gulshan Kumar were arrested. He proved the memo Ex. PW2/E and stated that trap proceedings were reduced in writing. He identify 30 GC notes of Rs. 1000/ Ex. P1 to Ex. P30. He further supported the prosecution on question of identification of voices of accused persons and the preparation of transcripts in CBI office. He proved the Ex. PW2/F and Ex. PW2/G. The audio cassette Q1 was played in the court during testimony of PW2 and he identified his voices as well as the voices of accused R. K. Tiwari and Gulshan Kumar in respect of almost each and every portion.
8.3 Testimony of (PW2) was assailed by Ld. defence counsel particularly for accused R. K. Tiwari and accused Gulshan Kumar mainly on the following grounds :
(i) That PW2 was interested to complete his unauthorized construction without any sanction plan which was not permitted by accused R. K. Tiwari. Therefore, PW2 was interested to remove accused R. K. Tiwari from the area DAI/2003/A0027/CBI/ACB/New Delhi 18 concerned for successful completion of unauthorized construction.
PW2 was interested in the success of the trap at any cost. The position of the complainant is like an accomplice and therefore, his testimony should be looked with caution.
There is no dispute to the legal preposition that as a rule of prudence, the testimony of complainant in a trap case should not be accepted without corroboration as he is considered as an interested witness.
(ii) That the conduct of PW2 speaks volumes about him. Dws have proved that after arrest of accused R. K. Tiwari, he succeeded to raise unauthorized construction up to 5th floor and is running a guest house. A person interested in such illegal activities is not worthy of reliance.
In my opinion, this fact itself does not discredit the testimony of PW2. The requirement of law is that testimony should not be accepted unless corroborated by some independent evidence on the material aspects of the case. Corroboration is not required on each and every fact of the case but court should seek corroboration to satisfy about the truthfulness of the version of complainant on vital aspects of the case.
(iii) That no complaint filed by accused Gulshan Kumar was found in records of MCD which creates doubt in the version of complainant that Gulshan Kumar was threating him to get demolish his property.
(iv) That PW2 Sh. Sudhir Gupta did not support the prosecution case in respect of complaint Ex. PW2/A and the documents prepared by TLO and IO. DAI/2003/A0027/CBI/ACB/New Delhi 19 Still, he was not declared hostile on the vital points which discredit his testimony.
In my opinion, these contradictions does not go to the root of the case and are insignificant.
(v) That apart from the members of the trap team no independent witness was joined at any stage of pre and post trap proceedings, though as per the prosecution version, public persons were available at Evergreen Sweet House i.e. at the spot as well as at Sartaj Hotel which creates doubt in the prosecution case.
In my opinion, non joining of public witness was due to non availability of willing witness.
(vi) That PW2 had gone with other members of the trap team to apprehend accused Gulshan Kumar but complainant said that hand washes of accused Manoj was taken in his presence which is not possible.
(vii) That PW1 failed to explain the position of shadow witness Ajit Topo and other members of the tram team and he was not in position to depose on these aspects. From his complaint, it is not clear that what exact amount was demanded and by whom it was demanded ?
(viii) He took the trap money at that time of his first visit at CBI office on 29.04.03 which appears to be unnatural. This fact supports the defence version that prior to the date of trap, complainant visited the CBI office on 25.04.03 and conspire the false implications of accused persons.
(ix) It is not explained by PW2 that from which portion of the car the GC DAI/2003/A0027/CBI/ACB/New Delhi 20 notes were recovered. He was the best witness to identify the GC notes but he has not identified the same which creates a doubt in the prosecution case.
(x) That there are number of contradictions and improvements in the testimony of complainant in respect of pre and post trap proceedings, timings of telephonic calls, meeting with accused Gulshan Kumar, the spot where car was parked, the spot where the transaction was completed in the car, the identification of voice by him, preparation of documents at the spot as well as in Sartaj Hotel and hand washes of accused persons. Ld. defence counsel also pointed that PW2 was not in position to see anybody outside the Evergreen Sweet House and his testimony is contradictory to the version of PW Ajit Topo in respect of the manner, place and meeting of Gulshan Kumar.
8.4 in my opinion, contradictions mentioned in sub paras (vi) to (x) are minor in nature and are not related to the material facts.
8.5 Ld. defence counsel contended that testimony of PW2 and other PWs in respect of the presence of accused Gulshan Kumar, the story about his escape from spot, the version of his arrest from his shop is improbable. If TLO and other members of the trap team were near to the car, accused Gulshan Kumar could not run away from the spot. If the story of escape of accused Gulshan Kumar from the spot is taken as correct, the version about the position of trap team near the car appears to be imaginary. Ld. defence counsel also submitted that in the DAI/2003/A0027/CBI/ACB/New Delhi 21 circumstances, no person would go to his shop and in ordinary course, accused would have tried to hide himself. If accused Gulshan Kumar was suspicious about some chemical on the GC notes, in ordinary course he would have washed his hands and, therefore, presence of phenolphthalein on his hands at that time of hand washes in Sartaj Hotel appears improbable.
Ld. counsel also contended that the arrest of accused R. K. Tiwari from his office also appears to be unnatural. If there would have been any conspiracy between accused Gulshan Kumar and R. K. Tiwari, in ordinary course he would have immediately inform accused R. K. Tiwari about the trap and in that eventuality, accused R. K. Tiwari would not have been found sitting in his office. 8.6 I am not able to accept the contentions as not only PW2, PW3, PW11 and PW15 supported on these facts but accused Manoj Kumar Gupta also accepted trap proceedings and the presence of accused Gulshan Kumar with him as well as the escape of Gulshan Kumar from the spot.
8.7 It was argued that there is no mention of role of accused Manoj Kumar Gupta in the complaint Ex. PW2/A and FIR Ex. PW2/B though as per complainant, he was involved in the conspiracy which appears to be unnatural. 8.8 Presence of Manoj Kumar Gutpa was insisted by accused R. K. Tiwari during conversation in the trap proceedings after lodging complaint Ex. PW2/A DAI/2003/A0027/CBI/ACB/New Delhi 22 and FIR Ex. PW2/B, therefore, in my opinion, the contention is without merit. 8.9 Let us further consider the submissions of Ld. defence counsels in the context of the case. The trap is pertaining to the year 2003. Charges were framed in year 2006. Testimony of PW2 for the first time was started on 15.05.06 which could be concluded after several dated on 25.07.07. The version of the complainant, in complaint Ex. PW2/A, FIR Ex.PW2/B, telephonic conversation, transcript Ex. PW2/F and his testimony in the court is consistent about the demand of bribe by accused R. K. Tiwari and Gulshan Kumar, the insistence of accused R. K. Tiwari to pay the bribe amount to accused Gulshan Kumar in presence of accused Manoj Kumar Gupta, the acceptance of bribe by accused Gulshan Kumar and recovery of bribe amount from the car after being thrown by accused Manoj Kumar Gupta. On vital issues pertaining to the demand, acceptance and recovery of bribe, presence of accused Gulshan Kumar and Manoj Kumar Gupta at the spot, telephonic conversations between accused persons, hand washes and pre and post trap proceedings PW2 is consistent and in line with the testimony of PW Ajit Topo, PW11 Inderjit and PW15 TLO Inspector Surender Malik.
On material aspects, the testimony of complainant could not be impeached. Keeping in view the fact that his position in a trap case is like the position of accomplice/interested witness and his testimony suffers from some minor contradictions and improvements, the court should seek some DAI/2003/A0027/CBI/ACB/New Delhi 23 corroboration before accepting his testimony. There is no ground to discard the version of complainant. There is nothing on record to accept that his testimony is false on core issues. In fact, on material aspects, his testimony creates a ring of truth though still needs corroboration as a rule of precaution. 9 Testimony of PW3 Sh. Ajit Topo supports the prosecution case pertaining to the facts that on 29.04.03 he alongwith PW Sh. Inderjit Singh attended the CBI office. He was introduced to complainant Sh. Sudhir Gutpa. He was told about the complaint and demand of Rs. 1 lacs by accused. He deposed that complainant narrated his complaint and told that accused Gulshan Kumar demanded Rs. 1Lacs otherwise he would get demolish his construction work. He also support the prosecution case about the receipt of telephonic calls from one R. K. Tiwari and Gulshan Kumar, recording of telephonic calls in DVR, the demand of Rs. 1 lac by accused R. K. Tiwari for himself and Rs. 1 lac for accused Gulshan Kumar, the assurance of accused R. K. Tiwari to complainant that in case bribe is paid no action would be taken against his construction, the production of 30 GC notes each of Rs. 1000/ by complainant, the facts relating to the application of some powder on GC notes, the demonstration and reaction of phenolphthalein with the solution.
9.1 He also stated about preparation of handing over memo Ex. PW2/D, the transfer of recorded conversation in blank audio cassettes and his signatures on DAI/2003/A0027/CBI/ACB/New Delhi 24 the audio cassettes etc. He further deposed about the arrangements of sim card of the mobile phone so that conversation may be heard simultaneously and handing over of mobile phone to PW11. He also supported the prosecution case pertaining to pre and post trap proceedings, the appearance of accused Gulshan Kumar and Manoj Kumar Gutpa at Evergreen Sweet House and the receipt of telephonic calls from accused R. K. Tiwari. He stated that accused Gulshan Kumar took complainant inside the car and he was following them. He deposed that he had seen that inside the car Sh. Sudhir Gupta gave the money to accused Gulshan Kumar who accepted the same and put the money in the left side kurta pocket of accused Manoj Kumar Gupta. He deposed that accused Gulshan Kumar ran away from the spot, accused Manoj Gupta was arrested at the spot, Bribe money was recovered from the left side of the car under the seat and the money was tallied with handing over memo. He also supported the prosecution case about the version of complainant narrated by him in respect of the conversation/transactions inside the car. PW3 deposed about the telephonic conversation of complainant with accused R. K. Tiwari during the transaction inside the car. He further deposed about the hand washes of accused Manoj Gupta, the assembling of crowd at the spot and further proceedings in Grand Sartaj Hotel. He stated that accused R. K. Tiwari and Gulshan Kumar were brought in the room of Sartaj Hotel and their hand washes were taken and were sealed. He identify the GC notes marked Ex. P1 to Ex. P30 and stated about the personal search of all the three accused and his signatures on personal DAI/2003/A0027/CBI/ACB/New Delhi 25 search memos. He identify his signatures on recovery cum seizure memo ex. PW2/E as well as on site plan Ex. PE3/D. He sated that transcription of recorded conversation Ex. PW2/F and Ex. PW2/G bears his signatures. 9.2 Ld. defence counsels submitted that as per version of PW3, car was 30 yards away from the spot and he was outside the car. Still, he heard the conversation between complainant and accused inside the car. Ld. defence counsel submitted that testimony of PW3 is improbable. 9.3 Ld. defence counsel also pointed some other minor contradictions and discrepancies in the testimony of PW3 pertaining to the transaction dated 29.04.03.
9.4 Careful perusal of testimony of PW3 Sh. Ajit Topo, makes it clear that he joined the pre trap and post trap proceedings. He deposed about the prosecution version almost on all the vital facts with consistency. It is true that he was not in position to hear the direct conversation between complainant and accused persons inside the car and probably was not in position to observe exactly what was going on inside the car from a distance of 30 yards. Apart from these improbabilities, I do not find any material discrepancy in his testimony. In my opinion, PW3 deposed in consistent and natural manner on vital facts pertaining to pre trap and post trap proceedings. His testimony may be relied except the DAI/2003/A0027/CBI/ACB/New Delhi 26 portion of his deposition pertaining to conversation and transaction carried out inside the car.
10 PW11 Sh. Inderjit Singh was working as Assistant Director in Vikas Sadan, New Delhi. He deposed almost on the lines of complainant and PW3 Sh. Ajit Topo and supported the prosecution case on the vital facts pertaining to pre trap and post trap proceedings and deposed about the preparation of documents as well as transcripts and admitted his signatures.
10.1 It was submitted by Ld. defence counsels that as per chargesheet some technical arrangement was made in the mobile phones so that conversation inside the car may be simultaneously heard by PW11. But PW11 did not state anything on this aspect and prosecution has not declared him hostile. It was also submitted that, as per prosecution case, complainant could not switch on the DVR at the spot and no conversation was recorded pertaining to the alleged transaction at the spot. Still PW11 stated that DVR was played and conversation was heard pertaining to the conversation inside the car which discredit his testimony. He deposed contrary to the admitted facts of the prosecution case. 10.2. It was also submitted by Ld. defence counsel that as per prosecution case PW11 took his position near the TLO and they were at a distance from the car and therefore, PW11 Sh. Inderjit Singh was in not position to hear the DAI/2003/A0027/CBI/ACB/New Delhi 27 conversation inside the car or to observe the transaction. 10.3 Careful perusal of testimony of PW11 Sh. Inderjit Singh reveals that he deposed almost on all the facts pertaining to pre trap and post trap proceedings in natural and consistent manner except few minor aspects where his deposition is contrary to the testimony of other witnesses.
10.4 PW11 deposed in his examination in chief or cross examination in response to the questions put to him. It appears from his testimony that no question was put to him pertaining to hearing of conversation going on inside the car through mobile phone provided to him after technical arrangement. When no question was put to PW11 in respect of technical arrangement and hearing of direct conversation by him, it cannot be said a lapse on his part or the testimony cannot be treated false on this ground. It is true that as per prosecution case, conversation could not be recorded at the spot as complainant could not switch on the DVR and therefore, there could have been no possibility for PW11 to hear the conversation. PW3 has deposed about the technical arrangement and the mobile provided to PW11. It appears that PW11 might have heard the conversation on the mobile phone through technical arrangement. But, at the time of his testimony, he narrated about the conversation as if recorded through DVR. If these portions of his testimony are excluded, his remaining testimony does not suffer from any material contradiction or the improvement on material DAI/2003/A0027/CBI/ACB/New Delhi 28 facts and appears to be natural, consistent and reliable. 11 In respect of testimony of PW3 Sh. Ajit Topo and PW11 Sh. Inderjit Singh it was submitted by Ld. defence counsel that being the government officials they were under pressure to depose in support of the CBI case as there are certain circulars in this regard.
11.1 In my opinion PW3 and PW11 cannot be termed and treated as "accomplice" or the interested witnesses. Their testimony are not the testimony of interested witnesses (as in the case of complainant and TLO) in a trap case. Their testimony should not be doubted merely on the ground that they are the government servants and they have become the witnesses in case registered by CBI.
11.2 Nothing has come on record that PW3 or PW11 has any link with the complainant or the accused persons or they had any personal interest in the case. Nothing has been brought on record to discredit their testimony by showing any ulterior motive or other reason to falsely implicate the accused persons.
Evidence of hand washes 12 PW4 Dr. C. L. Bansal, Sr. Scientific Officer (Chemistry), CFSL, New DAI/2003/A0027/CBI/ACB/New Delhi 29 Delhi analyzed and examined the hand washes of accused Gulshan Kumar and Manoj Kumar Gutpa and Manoj Kumar Gutpa's kurta pocket wash and proved his report Ex. PW4/A wherein he recorded positive tests for presence of phenolphthalein and sodium carbonate in the washes. PW4 further proved bottles of hand washes Ex.P31, Ex. P32, Ex. P33 and Ex. P34. He stated that the bottles and cloth wrappers Ex. P34, Ex. P36, Ex. P37 and Ex. P38 bears his CFSL seal. He deposed that 4 sealed bottles with specimen seal of CBI, ACB, New Delhi75/2002 alongwith forwarding letter were received in the office of CFSL which were analyzed by him.
12.1 On hand washes PW2, PW3 , PW11 and TLO PW 15 have deposed consistently. It is deposed by PWs that hand washes of accused Gulshan Kumar, Manoj Kumar Gupta as well as the wash of kurta pocket of accused Manoj Kumar Gutpa were taken. All these witnesses also deposed that hand washes were duly sealed in the bottles. PW4 Sh. C. L. Bansal has supported the prosecution version that sealed hand washes were received in CFSL which were examined by him. PW Sh. C. L. Bansal proved his report Ex. PW4/A which establish the presence of phenolphthalein and sodium carbonate. 12.2 Some doubts were raised by Ld. defence counsels about the proper sealing of bottles of the hand washes and minor contradiction were pointed out. DAI/2003/A0027/CBI/ACB/New Delhi 30 In view of the consistent version of the witness and report of the PW4, in my opinion there is no ground to doubt. The hand washes corroborates the prosecution version that tainted bribe currency notes came in contact of accused Gulshan Kumar and Manoj Kumar and the kurta pocket of accused Manoj Kumar Gupta.
12.3 It was submitted by Ld. defence counsel for accused Gulshan Kumar, that as per the prosecution version he ran away from the spot and was arrested from his shop after a gap of 12 hours. As per testimony of witnesses he smelled something in GC notes. Ld. defence counsel submitted that in these circumstances, in ordinary course of events, accused Gulshan Kumar would have washes his hand prior to his arrest from the shop and the presence phenolphthalein power in his hands at the time of taking hand washes in Sartaj Hotel appears to be doubtful.
12.4 As per the testimony of main prosecution witness when hand washes of accused Gulshan Kumar were taken, the solution turned into light pink colour. It is possible that hands might not have been washed by accused Gulshan Kumar or even after wash, there may be presence of some amount of phenolphthalein in his hands. But, in view of the consistent testimony of witnesses, there is no reason to doubt about his hand washes.
DAI/2003/A0027/CBI/ACB/New Delhi 31 Evidence of Telephonic conversation 13 PW5 Dr. Rajinder Singh, Principal Scientific officer and Head of Physics and Forensic Voice Identification Unit, CFSL, CGO Complex, New Delhi deposed that for last about 20 years he has examined more than 1000 cases of voice comparison and identification. He further deposed about the receipt of parcels marked by him as parcel Q1, S1 and SII. Parcel Q1 contained questioned voice recording of accused R. K. Tiwari and Gulshan Kumar in normal audio cassette. Parcel SI was normal audio cassette which contained specimen voice recording of accused R. K. Tiwari. Parcel S2 a normal audio cassette contained specimen voice recording of accused Gulshan Kumar. 13.1 PW2, PW3, PW11 and PW15 have consistently deposed about the conversation between PW2 and accused R. K. Tiwari and Gulshan Kumar, its recording in DVR and transfer of data from DVR into blank audio cassettes. All these PWs have deposed that audio cassettes were sealed. PW5 Dr. Rajender Singh proved his report Ex. PW5/A. As per report Ex. PW5/A, after examination of specimen voices of accused R. K. Tiwari and Gulshan Kumar with their questioned voices through auditory and voice spectrography technique, it was found that the questioned voices were in the voices of person who gave specimen voices.
13.2 Ld. defence counsel submitted that original voices were recorded in DVR DAI/2003/A0027/CBI/ACB/New Delhi 32 which have not been produced before the court. Only the recording in audio cassettes have been produced and possibility of tampering can not be ruled out. 13.3 In view of the consistent testimony of PW2, PW3, PW11 and PW15 and the testimony of PW5, there is nothing on record to accept the allegations of any editing or alteration or manipulation in the recorded conversations. 13.4 It was further submitted by Ld. defence counsel that the audio cassettes of specimen voices were not played before the court and was not identified by any witness.
13.5 PW12 Sh. V. C. Chahuan has supported the prosecution case. Voices of accused Gulshan Kumar and R. K. Tiwari were recorded in his presence. He proved the memo Ex. PW12/A. He consistently deposed that the recordings were transferred into blank audio cassettes and sealed in his presence. He identified these audio cassettes Ex. P38 and P39. As per testimony PW5, audio cassettes of questioned and specimen voices were received intact/sealed and there is nothing in the cross examination on the point. PW12 was also not cross examined and therefore, there is no ground to accept the plea of tampering in the audio cassettes. Merely, because the audio cassettes were not played before the court, the authenticity of specimen voices of accused cannot be doubted. Otherwise also, during the testimony of PW12 or PW15 (TLO) nothing was DAI/2003/A0027/CBI/ACB/New Delhi 33 established during cross examination to accept that the specimen voices were not given by accused R. K. Tiwari or by accused Gulshan Kumar or it was tampered with in any manner.
13.6 Ld. defence counsel further argued that the questioned voices and tape recorded conversations were identified during trial only by PW2. It was submitted that identification of voice is always difficult. It was also submitted that questioned voices should have been mixed with the voices of other persons with similar content and then witness should have been asked to identify the same. Ld. defence counsel argued that identification of voices only by PW2 does not appear to be reliable and should not be accepted.
13.7 It is true that accurate voice identification is much more difficult than visual identification. Law laid down in the case of Nilesh Dinkar Paradkar v. State of Maharashtra (JT 2011 (3) SC 429 = 2011 (3) SCALE 473) is relevant here :
"that evidence of voice identification is at best suspect, if not, wholly incredible Accurate voice identification is much more difficult than visual identification it is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction The Courts have to be extremely cautions in basing conviction purely on the evidence of voice identification".DAI/2003/A0027/CBI/ACB/New Delhi 34
The guiding principles have been laid down in the case of Ram Singh Vs. Col. Ram Singh, AIR 1986, SC 3. It was held by the Hon'ble Supreme Court that...
"A tape recorded statement is admissible in evidence subject to the following conditions: (1) The voice of the speaker must be identified by the maker of the record or other person recognising his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.
(2) The accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence direct or circumstantial.
(3) Possibility of tampering with or erasure of any part of the tape recorded statement must be totally excluded.
(4) The tape recorded statement must be relevant.
(5) the recorded cassette must be sealed and must be kept in safe of official custody.
(6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances"
14 Voice identification may be difficult but is not impossible. The accurate DAI/2003/A0027/CBI/ACB/New Delhi 35 identification of recorded voice depends on so many factors like whether the conversation is with the person who identify the voice, how many times the person had heard the voice of the suspect and the special features of the language and pronunciation used by speaker. Correct identification also depends on the quality and audibility of the recorded conversation as well as the personal skills, intelligence and application of mind by the person identifying the voice.
14.1 In the present case, there is ample evidence on record that PW2 met accused R. K. Tiwari and Gulshan Kumar prior to the date of trap. He talked with them personally as well as over the phone. The telephonic conversation in question are the conversations of accused persons with PW2. During testimony of PW2, every portion of the recorded conversation i.e. questioned voice of accused R. K. Tiwari and Gulshan Kumar were put to the witnesses. PW2 has correctly identified almost all the portions of the voices of himself as well as accused R. K. Tiwari and Gulshan Kumar. Audio cassettes were heard during course of final arguments. The recorded telephonic conversation was found in very good audio quality.
14.2 There may be two different situations where a person may be asked to identify the voice. First, when the person identifying the voice is not the part of the conversation or most parts of the conversation. The second, when the DAI/2003/A0027/CBI/ACB/New Delhi 36 person identifying the voice is the part of most of the conversation. Recorded conversation may be identified from the recognition of the voice by an individual as well as from the content of the conversation. Where the conversation is in very short sentences between two persons and the person who is part of the conversation is asked to identify the same, possibly he will be in a better position to correctly identify the questioned voice of the other person talking to him. In the present case, recorded conversation is between PW2 and accused R. K. Tiwari and Gulshan Kumar which in good audio quality and comparatively in shorter sentences. The conversation is in the manner that the complainant and the accused had replied to each other, sentence by sentence. Therefore, in these circumstances, PW2 was the best person to identify the recorded conversation between him and accused R. K. Tiwari and Gulshan Kumar. PW2 has correctly identified the recorded conversation. There is nothing on record to doubt the truthfulness of the version of the complainant in respect of identification of voices. In my opinion, the questioned voices identified by complainant is reliable. 14.3 The careful hearing of the recorded conversation and perusal of its transcript clearly reveals the demand of bribe by accused R. K. Tiwari and Gulshan Kumar. It was submitted by Ld. defence counsel that accused R. K. Tiwari has not asked for the bribe but he only advised the complainant to tackle accused Gulshan Kumar who had made complaint against him. After careful consideration, this contention of Ld. defence counsel is not acceptable. Accused DAI/2003/A0027/CBI/ACB/New Delhi 37 R. K. Tiwari was the Jr. Engineer and was working in the capacity of public servant. If he would have no personal interest in the matter, in ordinary course, he would not have talk to complainant in such a detail and there was no reason for him to advise the complainant to get rid of accused Gulshan Kumar. The entire reading of telephonic conversation makes it clear that accused R. K. Tiwari asked the complainant to hand over the bribe amount to accused Gulshan Kumar and assured him that if he would pay the amount to accused Gulshan Kumar, no action would be taken against the construction of his house, otherwise construction would be demolished. The recorded conversation proves that there was meeting of mind between accused R. K. Tiwari and accused Gulshan Kumar to extract the bribe from complainant and the intention was to share the bribe. 15 PW6 Sh. R. K. Singh, Nodal Officer, Bharti Cellular Ltd. deposed that mobile no. 9818244122 and 9810131624 were in the name of Sh. Sudhir Gupta. He proved the records of mobile phone no. 9818244122 from 1st April 2003 to 30th April 2003 as Ex. PW6/1. He also proved the call details of mobile no. 9810131624 from 1st April 2003 to 30th April 2003 as Ex. PW6/2. 16 PW7 Sh. Anil Kumar, Asstt. Engineer, Division 18, MCD, Old Hindu Rao College, Delhi06, proved sealing of file no. 1014/UC/152 dated 26.02.2003 in respect of plot of complainant and proved the file as Ex. PW7/A. From file Ex. PW7/A he proved the note sheet dated 18.04.03 as Ex. PW7/B and identify the DAI/2003/A0027/CBI/ACB/New Delhi 38 signatures of accused R. K. Tiwari. PW7 also proved sealing of file of the plot of complainant and proved the same as Ex. PW7/C and identify the signatures of accused R. K. Tiwari and note sheet dated 16.04.03 Ex. PW7/D. 17 PW8 Sh. B. B. Jaiswal (Retired Executive Engineer, South Zone, MCD.) stated that as per office order Ex. PW8/A accused R. K. Tiwari JE, was directed to look after ward No. 14. He also deposed about file Ex. PW7/A and Ex. PW7/B as well as the note sheet Ex. PW7/D in the handwriting of accused R. K. Tiwari. He stated that vehicle no. DL 5CC2140 was of accused R. K. Tiwari which was searched by CBI officers vide search memo Ex. PW8/B which was signed by him.
18 PW9 Sh. Pradeep Kumar Goel, Contractor in MCD, stated that in the year 2000 he was working as Contractor in the MCD and at that time he had mobile phone no. 9910131264. He handed over the phone to his field boy who left his job after about three and half months. The said field boy retained the mobile phone with him when he settled his accounts.
PW9 Sh. Pradeep Kumar Goel was cross examined by Ld. Sr. PP for CBI but despite cross examination he did not support the prosecution on the point that the aforesaid mobile phone was kept by accused R. K. Tiwari or its bills were paid by him in year 200203.
DAI/2003/A0027/CBI/ACB/New Delhi 39 18.1 Ld. defence counsel submitted that in view of statement PW9, prosecution failed to establish that mobile of PW9 was with accused R. K. Tiwari and was used by him for commission of offence.
18.2 In my opinion, in view of identification of voice by PW2, call records proved on record and circumstances of case, there is no room for doubt. 19 PW10 Sh. Sukhbir Singh was from MTNL. He identified the signatures of Sh. S. K. Sharma on letter Ex. PW10/A as well as Ex. PW10/B. He stated that telephone no. 26520235 was opened on 05.12.99 and was disconnected on 21.05.03.
20 PW13 Sh. Deepak Gupta, Sr. Manager (Legal) Vodafone Essar, South Ltd.. proved the call details of mobile phone no. 9811828597 and mobile no. 9811714310 and identified his signatures on call details Ex. PW3/A and Ex. PW13/B. He stated that he handed over the call details to CBI. 21 PW 14 Inspector R. C. Garvan ( IO), took over the records of the case from Inspector Surender Malik and concluded the investigation. He proved seizure memo and documents taken from Sh. Deepak Gupta, Nodal Officer, Hutch, Essar Telecom Ltd. Ex.PW14/A. He sated that he sent the hand washes as well as the questioned/sample voice of accused persons to CFSL. PW14 also DAI/2003/A0027/CBI/ACB/New Delhi 40 deposed that request for sanction for prosecution against accused R. K. Tiwari was sent to MCD and he collected the sanction order granted by competent authority.
22 Testimony of PW15 Inspector Surender Malik (TLO) He supported the prosecution case on the points that complaint was lodged by PW2 Sh. Sudhir Gupta, investigation was entrusted to him by SP concerned and he verified the genuineness of the allegations of the complaint and reported the same to SP concerned. He also supported the case in respect of registration of FIR Ex. PW2/B, presence of independent witnesses Sh. Ajit Topo and Sh. Inderjit Singh in pre trap and post trap proceedings, production of 30 GC notes each of Rs. 1000/ by complainant, recording of numbers of 30 GC notes in handing over memo Ex. PW2/C, application of phenolphthalein powder on GC notes, practical demonstration of phenolphthalein powder and sodium carbonate with the help of witness Sh. Inderjit Singh, personal search of complainant PW2 in pre trap proceedings, handing over of 30 GC notes treated with phenolphthalein powder to complainant, direction to hand over the amount to accused Gulshan Kumar or any other person as directed by accused R. K. Tiwari, instructions to PW Sh. Ajit Topo to act as shadow witness, to flash a signal to the trap team on the completion of transaction of bribe and instructions to independent witness Sh. Inderjit Singh.
DAI/2003/A0027/CBI/ACB/New Delhi 41 22.1 PW 15 further deposed about conversation between PW2 and accused R. K. Tiwari and accused Gulshan Kumar, recording of conversation in DVR, transfer of data in blank audio cassette, recording the specimen voices of the witnesses, sealing of cassette in the cloth wrapper with seal of CBI after marking it as Q1 and signatures of PW3 and PW11. He also stated that DVR recording was transferred in another blank audio cassette for the purpose of investigation. 22.2 PW15 supported the prosecution case in respect of technical arrangements by inserting the sim card of mobile phone of PW2 in another phone so that the conversation may be simultaneously heard by PW11 and about practical demonstration of the technical arrangement. He further proved handing over memo Ex. PW2/C and tape recording hading over memo Ex. PW2/D. 22.3 PW15 further deposed that PW2 alongwith PW3 were asked to sit in Evergreen Sweet House and to contact accused Gulshan Kumar, the arrival of accused Gulshan Kumar and Manoj Kumar Gupta in Maruti Zen car and that accused Gulshan Kumar took complainant with him and sat in the car. 22.4 PW15 deposed that trap team including himself and witness saw the transaction of bribe amount from Sh. Sudhir Gupta to accused Gulshan Kumar and then to Manoj Kumar Gupta as they were near the car. He stated that accused Gulshan Kumar ran away from the spot and accused Manoj Kumar DAI/2003/A0027/CBI/ACB/New Delhi 42 Gupta was apprehended and amount of Rs. 30,000/ (thrown by the accused Manoj Kumar Gupta on the mat of the car just near to the front seat) was recovered by the PW11. He also stated that PW3 compared the number of GC notes from the numbers already mentioned in handing over memo. He stated about hand washes of accused Manoj Kumar Gupta and sealing of hand washes. He stated that complainant Sh. Sudhir Gupta informed about the acceptance of bribe by accused Gulshan Kumar and assurance of accused Manoj Kumar Gupta that his house would not demolish by accused R. K. Tiwari. He also stated that complainant informed that accused Manoj Kumar Gupta made a telephonic call to accused R. K. Tiwari and told about the payment of Rs. 30,000/ by complainant and made a request to accused R. K. Tiwari not to take any action against complainant. He also corroborated the version of PW11 Inderjit Singh that he was listening the conversation through mobile phone. PW15 stated that conversation at the spot could not be recorded as complainant failed to switch on the DVR at the spot. He proved the site plan Ex. PW3/D and stated that thereafter, further proceedings were shifted and carried out at Sartaj Hotel. 22.5 He also deposed that accused Gulshan Kumar and R. K. Tiwari were brought to hotel Sartaj by the other members of the trap team and they were interrogated about the demand and acceptance of bribe from complainant. He supported the prosecution version in respect of arrest of all the three accused, hand washes of accused Gulshan Kumar in hotel Sartaj and sealing of the hand DAI/2003/A0027/CBI/ACB/New Delhi 43 washes.
22.6 PW15 stated that recovery memo Ex. PW2/E was prepared. PW15 further deposed that on 30.04.03 specimen voices of accused Gulshan Kumar and R. K. Tiwari were taken which were given by them voluntarily in presence of independent witnesses which was recorded in DVR and then was transferred in blank audio cassettes after recording the sample voice of the witnesses and the proceedings were recorded in a memo Ex. PW12/A. 23 Ld. defence counsel disputed the truthfulness of testimony of PW15 on the grounds of minor contradictions and improvements. It was submitted that car allegedly used in the commission of offence was not seized by the him, no independent witness was joined either at the spot at Evergreen Sweet House or at Sartaj Hotel despite availability of staff of Evergreen Sweet House and hotel Sartaj. It was submitted that the version of PW15 about the escape of Gulshan Kumar from the spot, his arrest from his shop and his hand washes appears to be improbable. Ld. defence counsel contended that the evidence reflect that site plan is contrary to site. There is no entry in the record of Sartaj Hotel or in CBI registers about the visit of complainant and independent witnesses. 23.1 It was submitted by Ld. defence counsel that mobile phone number used by accused R. K. Tiwari was in the name of PW9 Sh. Pradeep Kumar. PW15 has DAI/2003/A0027/CBI/ACB/New Delhi 44 not explained that why he did not verify from the incoming and outgoing calls of the mobile phone to establish that the mobile phone was being used by accused R. K. Tiwari in relevant period. PW15 could have interrogate the persons who made calls on said mobile phone on the date of trap or one or two days prior to date but failed to investigate this aspect.
23.2 Ld. defence counsel submitted that the recording in DVR was the original evidence which was not preserved by PW15 and there is no explanation in his testimony.
23.3 Despite some deficiencies pointed by the Ld. defence counsel, the testimony of PW 15 Sh. Surender Malik (TLO) appears to be consistent on the vital facts of the case in pre trap and post trap proceedings which finds corroboration from the testimony of PW2, PW3 and PW11. There is nothing on record to accept that PW15 had any relation with complainant or the accused persons. Merely, because the TLO may be interested in success of the trap, it cannot be accepted that TLO will conspire with the complainant to falsely implicate someone.
23.4 In view of the fact that TLO is considered as interested witness in law and some deficiencies has been pointed out by Ld. defence counsel, his testimony also requires corroboration. His statement finds the corroboration from the DAI/2003/A0027/CBI/ACB/New Delhi 45 testimony of other material witnesses PW2, PW3 and PW11 and the evidence on record. In my opinion, there is no reason to discard the testimony of PW15 or to doubt the truthfulness on the vital facts of the case.
Defence Evidence 24 In defence evidence DW1 Sh. Anirudh Kumar, record keeper, Building Deptt. MCD Office, Green Park, New Delhi was summoned. He stated that property no. 118/4, Gautam Nagar, New Delhi was booked lastly on 11.04.2008 for unauthorized construction of the 4th floor. He proved the certified copy of the FIR in this regard Ex. DW1/A. 24.1 DW2 Sh. T. C. Meena, LDC, CBI, ACB, New Delhi was summoned. He stated that recording of entries at the reception of CBI office is mandatory and thereafter, visitor's passes are issued. He stated that as per entry Ex. DW2/A one Sh. Sudhir Gupta, R/o 127/1, Gautam Nagar visited the CBI office on 25.04.03 at about 10:45 AM. In respect of entry record dated 29.04.03, he stated that there is no entry regarding the visit of Sh. Sudhir Gutpa, Sh. Ajit Topo and Sh. Inderjit Singh and entries recorded on 29.04.03 was Ex. DW2/B. DW2 also stated that there is no record for entry of visit of witness Sh. Inderjit Singh on 30.04.03 and photocopy of the record was Ex. DW2/C. 24.2 DW3 HC Kesar Singh, CBI Head Office, New Delhi stated that any public DAI/2003/A0027/CBI/ACB/New Delhi 46 person who visit the CBI office is required to put his entry and details in the visitor register maintained at the reception After recording the entry, visitor's pass is being issued and only thereafter, the security staff would allow the visitor to enter the building. He deposed, entry records dated 29.04.03 bears total 71 entries of the visitors but there is no entry pertaining to Sh. Sudhir Gupta, Inderjit Singh and Sh. Ajit Topo. In respect of entry record dated 30.04.03 he stated that there are 61 entries of the visitors but there is no entry pertaining to visit of Sh. Inderjit Singh, Sh. Sudhir Gupta, Sh. V. C. Chahuan and V. K. Bohra. In respect of entries record dated 06.05.03 he stated that there is no record pertaining to the entry of Sh. Sudhir Gupta. During cross examination by Ld. Sr. PP, he stated that entries record was not maintained by him but it was maintained by the officials deputed at reception. He stated that he had performed duties at reception and there is no question of anyone entering the CBI office without his particulars being recorded in the visitors register at reception.
25 It was submitted by Ld. Sr. PP, that testimony of prosecution witnesses proves beyond any reasonable doubt that all the three accused entered into a criminal conspiracy. The motive of criminal conspiracy was to demand and accept the bribe from the complainant for the benefit of accused persons. Accused R. K. Tiwari not only demanded and accepted the bribe through accused Gulshan Kumar and Manoj Kumar Gupta for not demolishing the construction of the complainant but also misconducted himself by misusing his DAI/2003/A0027/CBI/ACB/New Delhi 47 official position as such public servant to gain pecuniary advantage for himself and for the coaccused.
26 Ld. defence counsel for accused R. K. Tiwari and Gulshan Kumar submitted that case of prosecution is full of doubts. Testimony of PW2, PW3, PW11 and PW15 suffers from material contradictions, improvements and deficiencies and does not appear to be reliable. Ld. defence counsel further contended that there is no evidence of demand, acceptance and recovery against accused R. K. Tiwari and accused Gulshan Kumar. 26.1 In support of his contentions, Ld. defence counsel referred the case of State of Maharashtra V. Dnyaneshwar Laxman Rao Wankhede, 2009 AIR (SCW) 5411, and submitted that accused is required to prove the defence in preponderance of probabilities and not beyond all reasonable doubt. Ld. defence counsel submitted where two views of the evidence is possible, that one in favour of accused, should prevail. In support of this contention Prem Singh Yadav V Central Bureau of Investigation, 2011 (178) DLT 529, was also referred.
26.2 It was submitted that to prove the allegations of demand, acceptance and recovery of bribe, statement of complainant or trap witnesses cannot be relied DAI/2003/A0027/CBI/ACB/New Delhi 48 without independent corroboration. To support this contention, Ld. defence counsel relied on the case of Mohinder Singh Vs. State of Punjab, 1990 (2) RCR (Criminal) 371 and Gurcharan Singh V. State of Haryana, 1994 Cr. LJ (P & H) 1710.
26.3 Ld. defence counsel vehemently argued that complainant was interested to complete his unauthorized construction and therefore, he falsely implicated the accused R. K. Tiwari to get him transfer and succeeded to complete his unauthorized construction after this case. It was also submitted that neither any public witness was joined at the spot nor the car used in commission of offence was seized. In the opinion of Ld. defence counsel, evidence of PWs is full of doubts, improbabilities and should not be accepted.
26.4 Ld. defence counsel further submitted that evidence of DWs creates a doubt about the visits of PW2, PW3, PW4 and PW12 in the CBI office on respective dates and sanction for prosecution has been granted mechanically without application of mind. On the question of demand, acceptance and recovery of bribe, Ld. defence counsel pointed certain contradictions/improvements and deficiencies in the testimony of main witnesses. It was submitted that no reason has been given to conduct the proceedings at Sartaj Hotel. It was also stated that telephonic conversation and transcript are DAI/2003/A0027/CBI/ACB/New Delhi 49 not reliable evidence.
27 In the case of Jamir Ahmed Vs. State, 1996 Crl. Law Journal 2354 it was held that :
" It would be a hard not to crack to find out a case which is bereft of embellishment, exaggeration, contradictions and inconsistencies. The said things are natural. Such contradictions and inconsistencies are bound to creep in with the passage of time. If the witnesses are not tutored they would come out with a natural and spontaneous version on their own. The two persons on being asked to reproduce a particular incident which they have witnessed with their own eyes would be unable to do so in like manner. Each one of them will narrate the same in his own words, according to his own perception and in proportion to his intelligence power of observation".
27.1 In view of the above discussion and law laid down in the case of Jamir Ahmed (Supra) the contradictions, inconsistencies, exaggeration and deficiencies in the testimony of witnesses which does not go to the root of the matter does not effect the prosecution case as discussed above. The testimony of PW2, PW3, PW11 and PW15 appears to be consistent, reliable and trustworthy which creates a ring of truth. There is no reason to doubt the testimonies to accept that these PWs were interested in false implication of either accused. DAI/2003/A0027/CBI/ACB/New Delhi 50 27.2 Defence of accused R. K. Tiwari and Gulshan Kumar is that they have been falsely implicated. They have denied the allegations of criminal conspiracy between them as well as the presence of accused Gulshan Kumar at the time of trap. Contrary to the defence of accused R. K. Tiwari and Gulshan Kumar, accused Manoj Kumar Gupta in his statement u/s. 313 Cr. P. C., has accepted presence of accused Gulshan Kumar with him and acceptance of bribe by accused Gulshan Kumar.
27.3 It was submitted by Ld. defence counsel for accused Manoj Kumar Gupta that there is no mention of demand of money by accused Manoj Kumar Gupta either in complaint Ex. PW2/A or in the testimony of PW2 and other witnesses. During telephonic conversation, the name of accused Manoj Kumar Gupta has been unnecessarily dragged. Accused Manoj Kumar Gupta was called at the spot by PW2 himself for his help and accused Manoj Kumar Gupta reached at the spot at the request of PW2 being his childhood friend. It was further submitted that as per testimony of main PWs, the bribe amount was given by complainant to accused Gulshan Kumar who suspected some foul play and forcibly put the money in the front side kurta pocket of accused Manoj Kumar Gupta who immediately take out the money and threw it. The testimony of witness does not mention about the demand or acceptance of bribe by accused Manoj Kumar Gupta. It was also submitted that accused Manoj Kumar Gupta DAI/2003/A0027/CBI/ACB/New Delhi 51 was not aware about the transaction of bribe. He was confident that he had been called by PW2 for his help. Therefore, despite opportunity, he did not run away from the spot like accused Gulshan Kumar. Ld. defence counsel submitted that meeting of mind or overt act has not been established against accused Manoj Kumar Gupta to establish his involvement in criminal conspiracy for extracting bribe from complainant.
27.4 Defence is required to be considered in preponderance of probabilities and the standard of proof is not the same as is for the prosecution to prove its case. In preponderance of probabilities, the court has to assess the defence from the angle of the prudence of an ordinary man to reach at the conclusion, whether the defence is probable? After careful consideration of the testimony of witnesses discussed above, in preponderance of probabilities, the defence of accused R. K. Tiwari, Gulshan Kumar and Manoj Kumar Gupta does not appear to be genuine, probable and convincing. If Manoj Kumar Gupta would have been called by PW2, there was no reason to implicate him by complainant and his presence would have not been insisted by accused R. K. Tiwari.
28 Ld. Defence counsels expressed their doubt on the basis of statement of DWs. In my opinion, in view of consistent statements of PW2, PW3, PW11, PW12 and PW15, there is no reason to doubt the visits of PWs in the CBI office on relevant dates. In my opinion, system of entry record in CBI office is not as DAI/2003/A0027/CBI/ACB/New Delhi 52 strict as stated by DWs. Without visit of PW2, even FIR could not be registered. But, record proved registration of case and pre trap and other proceedings. I am not able to accept that nothing happened in CBI office or everything could be manipulated.
29 I have heard Ld. Sr. PP for CBI and Ld. defence counsels for accused persons and carefully perused the testimony of witnesses. 30 All the three accused are facing charges for commission of offence of criminal conspiracy u/s. 120 B of IPC to commit offence u/s. 7 and 13(1)(d) r/w Sec. 13(2) of PC Act, 1988. Accused R. K. Tiwari has also been charged u/s. 7 and 13(1) (d) r/w 13(2) of PC Act, 1988.
31 In order to prove the criminal conspiracy, prosecution is required to establish the meeting of mind between the accused persons to enter into the criminal conspiracy and some overt act on the part of each accused towards the accomplishment of criminal conspiracy. The offence of criminal conspiracy is generally committed in clandestine manner to hide the commission of offence and therefore, generally there can hardly be any direct evidence in the form of independent witness in such cases. The meeting of mind, criminal intention and respective roles of respective accused can be established either by the direct or the circumstantial evidence. Therefore, circumstantial evidence also becomes DAI/2003/A0027/CBI/ACB/New Delhi 53 important in the cases of criminal conspiracy.
32 In order to prove criminal conspiracy, prosecution is required to prove:
(a) That both the accused agreed to it, or caused to be done an illegal act or an act which is not illegal by illegal means:
The elements of criminal conspiracy may be stated as: An object to be accomplished;
(a) A plan or scheme embodied means to accomplish that object;
(b) An agreement or understanding between two or more of the accused persons whereby they become definitely committed to cooperate for the accomplishment of the object by the means embodied in agreement, or by any illegal means;
(c) The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it is necessarily following that unless the statute so requires, no overt act need to be done in furtherance of the conspiracy, and that the object of the combination need not to be accomplished, in order to constitute an indictable offence.
For reference - Devender Pal Singh Vs. State of NCT of Delhi, 2002 SCC (Cri) 978; Noor Mohammed Yusuf Momin Vs. State of Maharashtra, AIR 1971 SC 885; State Vs. Nalini, AIR 1999 SC 2640 may be referred.
33 In the case of Hira Lal Hari Lal Bhagwati Vs. CBI, 2003 SCC (Cri) 1121 it DAI/2003/A0027/CBI/ACB/New Delhi 54 was held that...
"To bring home the charge of conspiracy within the ambit of Section 120B, it is necessary to establish that there was an agreement between the parties for doing unlawful act. It is difficult to establish conspiracy by direct evidence"
34 In order to prove charge u/s. 7, prosecution is required to prove the following ingredients of the offence:
(i) The accused was a public servant or expected to be a public servant at the time when the offence was committed.
(ii) The accused accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person.
(iii) For himself or for any other person.
(iv) Such gratification was not a remuneration to which the accused was legally entitled.
(v) The accused accepted such gratification as a motive or reward for:
(a) doing or forbearing to do an official act, or
(b) doing or forbearing to show favour or disfavour to someone in the exercise of his official function, or
(c) rendering or attempting to render any service or disservice to some one with the Central or any State Government or Parliament or the DAI/2003/A0027/CBI/ACB/New Delhi 55 Legislature of any State, of with any local authority, Corporation or Government company referred to in Sec. 2 clause (c) or with any public servant, whether named or otherwise.
35 B. Parameshwran v. State of A. P., 1999 Cr. L. J. 2059 (AP): is an important case wherein it was held that " A reading of this provision would make it amply clear that all the three wings of clause (d) of Sec.
13(1) are independent and alternative and disjunctive for constituting the ingredients of the offence under Sec. 13(1) (d) as is clear from the use of word or (at the end of each sub clause).
Thus under Sec. 13(1) (d) (i) obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would satisfy the requirement of criminal misconduct under Se. 13 (1) (d) of the Prevention of Corruption Act, 1988. on the same reasoning "obtaining a valuable thing or pecuniary advantage merely by abusing official position "as contemplated under Se. 13 (1) (d) (ii) in itself would satisfy the ingredients of criminal misconduct under Sec. 13(1) (d) (i) of the Act, 1988. Thus, it would appear that there is definite change as to the ingredients of offence of criminal misconduct under Sec. 13(1) (d) of Act, 1988 as distinct from Sec. 5(1) (d) of the Prevention of Corruption Act, 1947. The judgment of the Supreme Court rendered while interpreting the DAI/2003/A0027/CBI/ACB/New Delhi 56 provisions of Prevention of Corruption Act, 1947 have to be appreciated taking into account of changes incorporated in relevant provisions in the Prevention of Corruption Act, 1988."
36 In order to bring home the guilt of accused persons, prosecution is required to prove:
(a) That there was a criminal conspiracy between the accused R. K. Tiwari, Gulshan Kumar and Manoj Kuamr Gutpa for demand and acceptance of bribe.
(b) That bribe was demanded by accused persons.
(c) That the bribe was accepted by accused.
(d) That bribe amount was recovered from the possession of the accused.
37 In order to prove the criminal conspiracy, Ld. Prosecutor has relied on following direct and circumstantial evidence:
(a) That in complaint Ex. PW2/A complainant has specifically named accused R. K. Tiwari and Gulshan Kumar and alleged about the demand of bribe by them.
(b) Testimony of complainant PW2 Sh. Sudhir Gupta, PW3 Sh. Ajit Topo, PW11 Sh. Inderjit Singh and PW15 Sh Surender Malik. For corroboration, Ld. Prosecutor has pointed the testimony of PW5 Dr. Rajender Singh from CFSL who after examination opined that the DAI/2003/A0027/CBI/ACB/New Delhi 57 question voices are in the voices of accused persons and testimony of PW4 Sh. C. L. Bansal from CFSL who gave positive findings in respect of present of phenolphthalein powder and sodium carbonate in the hand washes of accused Gulshan Kumar and Manoj Kumar Gupta.
(c) Corroboration by recorded conversation between complainant and accused R. K. Tiwari and Gulshan Kumar and its transcript Ex. PW2/F. The call details proved by the witnesses to corroborate that there were telephonic conversations between complainant and accused R. K. Tiwari and Gulshan Kumar as claimed by the prosecution.
(d) The testimony of witnesses and circumstances which proves that the phones used for commission of crime were either in the name of complainant and accused persons or were being used by them at the relevant time.
(e) The testimony of PW2, PW3, PW11 and PW15 to prove the pre trap and post trap proceedings, the presence of accused Manoj Kumar Gupta and Gulshan Kumar at the spot, their conversation inside the car. Evidence of demand and acceptance of bribe by accused Gulshan Kumar and Manoj Kumar in conspiracy with accused R. K. Tiwari.
(f) Recovery of bribe from the car used by accused Gulshan Kumar and Manoj Kumar Gupta.
38 Prosecution is required to prove its case beyond reasonable doubt.
"Reasonable doubt" is not an imaginative doubt of a weak mind. The reasonable DAI/2003/A0027/CBI/ACB/New Delhi 58 doubt cannot be based on the assessment made from the shadows created during trial. Insignificant contradictions or improvements of witnesses or the lapse in investigation does not create a reasonable doubt unless there is doubt about the truthfulness of the witnesses on material aspects of the case.
Reasonable doubt is created only when two equally possible views are available in preponderance of probabilities.
39 In view of the above discussion, in my opinion, on the aspect of criminal conspiracy, demand, acceptance and recovery of bribe, the role of accused persons and on the essential ingredients of the charge framed against accused persons, prosecution has proved following facts and circumstances beyond any reasonable doubt :
(a) Accused R. K. Tiwari was working as Jr. Engineer and comes within the definition of public servant.
(b) Sanction for prosecution against accused R. K. Tiwari.
(c) The demand of bribe from complainant by accused R. K. Tiwari and Gulshan Kumar in the office of accused R. K. Tiwari for continuation of construction of his house and to avoid demolition.
(d) Complaint Ex. PW2/A and FIR Ex. PW2/B containing allegations of demand of bribe by accused Gulshan Kumar and accused R. K. Tiwari.
(e) Insistence of accused R. K. Tiwari about the presence of accused Manoj DAI/2003/A0027/CBI/ACB/New Delhi 59 Kumar Gupta at the time of payment of bribe to accused Gulshan Kumar.
(f) The presence of accused Gulshan Kumar and accused Manoj Kumar Gupta at the spot. Demand and acceptance of bribe by accused Gulshan Kumar and Manoj Kumar.
(g) Recovery of bribe amount from the car immediately after the escape of accused Gulshan Kumar from the spot.
(h) Arrest of accused Manoj Kumar Gupta at the spot and arrest of accused Gulshan Kumar and R. K. Tiwari from the shop and office respectively.
(i) Hand washes of accused Gulshan Kumar and Manoj Kumar Gupta showing their involvement in acceptance of bribe amount.
(j) Recorded telephonic conversation and transcript showing demand of bribe by accused R. K. Tiwari and Gulshan Kumar.
(k) The testimony of complainant about active role of accused Manoj Kumar Gupta about his presence, telephonic conversation with accused R. K. Tiwari and assurance to complainant that after payment of bribe his property would not be demolished.
(l) Corroboration of testimony of PW2, PW3, PW11 and PW15 from each other and from the hand washes, recorded telephonic conversation, opinion of CFSL experts and call details of telephones used during conversation by complainant and accused persons.
40 The above proved facts on record supported by the testimony of PW2, PW3, PW11 and PW15 which finds corroboration from each other as well as from hand washes, telephonic conversation and call records clearly proves beyond DAI/2003/A0027/CBI/ACB/New Delhi 60 any doubt that all the three accused entered into criminal conspiracy to demand and accept the bribe and in pursuance to the criminal conspiracy, bribe was demanded by accused R. K. Tiwari and Gulshan Kumar and was accepted by accused Gulshan Kumar and Manoj Kumar Gupta on behalf of accused R. K. Tiwari as well for themselves and was recovered from the car used for commission of offence at the time of trap i.e. from the possession of accused Manoj Kumar Gupta which beyond any doubt proves the offence u/s. 120 B of IPC r/w Sec. 7 and Sec. 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 against all the three accused. It has also been established beyond any doubt that accused R. K. Tiwari being the public servant misused his position as such public servant to allow continuation of construction at the house of accused and by entering into criminal conspiracy demanded the bribe and accepted the same through coaccused Gulshan Kumar and Manoj Kumar Gupta and thereby, committed criminal misconduct which proves the essential ingredients of offence u/s. 7 and Sec. 13(1) (d) r/w Sec. 13(2) of Prevention of Corruption Act, 1988 against him.
41 In view of the above findings, prosecution has been able to prove its case against all the three accused beyond any reasonable doubt. Accordingly, all the three accused are convicted for the following offences:
(a) Accused R. K. Tiwari, Gulshan Kumar and Manoj Kumar Gupta for the DAI/2003/A0027/CBI/ACB/New Delhi 61 offence u/s. 120 B r/w Sec. 7 and 13(1) (d) r/w 13(2) of Prevention of Corruption Act, 1988.
(b) Accused R. K. Tiwari for the offence u/s. 7 and 13(1) (d) r/w 13(2) of Prevention of Corruption Act, 1988.
42 Let convicts be heard on the point of sentence separately.
Announced in the open court Sanjeev Jain
th
on this 13 day of March 2012 Spl. Judge(PC Act), CBI02
DAI/2003/A0027/CBI/ACB/New Delhi 62