Delhi District Court
His Contention Ld. Defence Counsel ... vs . State Of Mp Air 1976 on 22 October, 2011
IN THE COURT OF SHRI SANJEEV JAIN: SPECIAL JUDGE (PC ACT), CBI2
NEW DELHI DISTRICT, PATIALA HOUSE COURT, NEW DELHI
CC No. 96/(04)/06
RC No. 10A/2003/CBI/ACB/CBI/New Delhi
U/s 7 & Sec. 13(2) r/w Sec. 13(1)(d) of PC Act, 1988.
Central Bureau of Investigation
Versus
Harjinder Singh Gill
S/o Shri Jawahar Singh
R/o I23, Lajpat NagarIII
New Delhi
Date of Institution : 30.04.2004
Arguments heard on : 29.09.2011
Date of Judgment : 22.10.2011
Appearance:
For prosecution : Shri A.K. Gaba, Sr. PP
For accused : Shri I.S. Kapoor, Adv.
JUDGMENT
1 As per chargesheet, the case was registered on 10.02.2003 on the written RC No. 10A/2003/CBI/ACB/CBI/New Delhi 1 complaint of Shri B.S. Nakra (Ex.PW2/D). As per the complaint, Shri B.S. Nakra was working as CEO of M/s. Ambifin Systems situated at Globe House, Second Floor, Opposite D60/2, East of Kailash, New Delhi. M/s. Ambifin Systems was in the business of renting of computers. This firm had rented four computers of M/s. Primus Network, 320, Sant Nagar, New Delhi. Complainant visited the premises of M/s. Primus Network on 06.02.2003 for collection of rent, but the premises was found locked. He was informed by the landlord of the premises that Special Cell, Delhi Police, Lodhi Road, New Delhi has conducted a raid in the premises and the investigation of the case was being conducted by Inspector H.S. Gill (Accused). It was further alleged in the complaint that on 08.02.2003 at about 6.30 PM complainant received a phone call from accused H.S. Gill. H.S. Gill asked him to call him on his mobile phone no.9811236919 on 09.03.2003 between 10.30 - 11.00 PM for the release of his computers lying at the premises at Sant Nagar. On being contacted by complainant, accused H.S. Gill asked him to meet at 320 Sant Nagar. On meeting, accused demanded bribe of Rs.20,000/ from the complainant for the release of computers. Accused also informed the complainant that 4th computer was taken as case property and would be released within 34 months. Complainant discussed the matter with Shri H.C. Pahwa, proprietor of M/s. Ambifin Systems. Shri S.C. Pahwa and complainant Shri B.S. Nakra again met Shri H.S. Gill at police station on 10.02.2003 and informed him that they were not at fault. Shri H.S. Gill reduced the bribe amount to Rs.15,000/ and asked the complainant and Shri S.C. Pahwa to pay the same RC No. 10A/2003/CBI/ACB/CBI/New Delhi 2 by the evening of 10.02.2003 otherwise they would never get their computers. 1.2 Complainant was not interested to pay the bribe, therefore, Shri B.S. Nakra and Shri S.C. Pahwa approached CBI and accordingly the case was registered on written complaint of Shri B.S. Nakra.
1.3 A trap team of Inspector Surender Malik, Trap Laying Officer (TLO), Inspector S. Balasubramony, Inspector R.C. Garvan, SI Prem Nath was constituted under the supervision of Shri M.S. Singhal, Dy. SP. Two independent witnesses Shri Mam Raj Kumar and Shri G.V. Murthy both from ITDC, CGO Complex, New Delhi were called. Independent witnesses were introduced to Shri B.S. Nakra, the complainant and Shri S.C. Pahwa, the Proprietor of M/s. Ambifin Systems and to the other members of the trap party. The complaint dated 10.02.2003 lodged by Shri B.S. Nakra was shown to both the independent witnesses and to all other members of the trap team. Independent witnesses went through the contents of the complaint to satisfy themselves about the genuineness of the complaint. The complainant produced amount of Rs.5,000/ consisting of one GC note of Rs.1000/ and eight GC notes of Rs.500/ denomination. Numbers of these GC notes were noted down in Handing Over Memo Ex.PW5/B. GC notes were treated with phenolphthalein powder and the reaction of the powder with Sodium Carbonate solution was explained to the witnesses through a demonstration.
RC No. 10A/2003/CBI/ACB/CBI/New Delhi 3 1.4 As per chargesheet, personal search of complainant Shri B.S. Nakra was conducted and he was not allowed to keep anything with him. The duly treated GC notes of Rs.5000/ were kept in the left side shirt pocket of Shri B.S. Nakra and he was directed to handover the bribe amount to the accused H.S. Gill on his specific demand of bribe and not otherwise or to some other persons on the specific direction of accused H.S. Gill.
1.5 Shri Mam Raj Kumar was directed to act as a shadow witness and remain close to the complainant to hear over the conversation between accused and complainant and to see the transaction of bribe amount from Shri B.S. Nakra to Shri H.S. Gill. Shadow witness Shri Mam Raj Kumar was further directed to give signal by scratching his head by his right hand after completion of transaction of bribe.
1.6 After completion of pre trap proceedings, all the members of trap team conducted mutual search of each other to ensure that none of them was carrying any incriminating documents/articles. These proceedings were completed at about 6.00 PM in the office of CBI and the details of the proceedings were incorporated in a memo called 'Handing Over Memo' which was signed by all the members of trap party.
RC No. 10A/2003/CBI/ACB/CBI/New Delhi 4 1.7 A Samsung Digital Recorder, One TDK60 cassette alongwith Sanyo Compact Recorder and the cord were arranged. The functioning of Digital Recorder was explained to all the members of the trap team. Specimen voice of both the independent witnesses was recorded in Samsung Digital Recorder. Thereafter, Digital Recorder was handed over to Shri S.C. Pahwa, Proprietor of M/s. Ambifin Systems for recording the conversation between him and Shri H.S. Gill as Shri B.S. Nakra had stated that he would not be able to operate the Digital Recorder property. These proceedings were incorporated in a memo called 'Digital Recorder Handing Over Memo' prepared in the office of CBI. All the proceedings were completed at about 6.05 PM.
1.8 At about 6.30 PM (on 10.02.2003), CBI trap team including both the independent witnesses, Shri B.S. Nakra and Shri S.C. Pahwa reached at the premises of M/s. Ambifin Systems. Shri B.S. Nakra contacted Inspector H.S. Gill (Accused) on his Cell Phone no.9811236919 and then connected Shri H.S. Gill to Shri S.C. Pahwa. The conversation held between them was simultaneously recorded in Digital Recorder which revealed that Shri H.S. Gill had demanded Rs. 15,000/ as bribe from Shri S.C. Pahwa and agreed to accept bribe amount of Rs. 5,000/ . As per recorded conversation, accused directed Shri S.C. Pahwa to come to Lodhi Colony. Accused further directed Shri S.C. Pahwa to pay the remaining amount of Rs.10,000/ on 11.02.2003.
RC No. 10A/2003/CBI/ACB/CBI/New Delhi 5 1.9 As per direction of accused H.S. Gill, at about 8.00 PM all the members of trap team including both the independent witnesses reached at Lodhi Colony, New Delhi. Shri S.C. Pahwa made a call to Shri H.S. Gill from PCO in Lodhi Colony. After the conversation, Shri S.C. Pahwa informed that Shri H.S. Gill asked him to contact him again after reaching near police station. Accordingly, Shri S.C. Pahwa again made a telephonic call to accused H.S. Gill from PCO. Accused informed Shri Pahwa that he is reaching at the main gate of police station. At about 8.20 PM, accused H.S. Gill, Inspector Delhi Police, Special Cell, Lodhi Road, New Delhi came at the main gate of PS Lodhi Road, New Delhi where shadow witness Shri Mam Raj Kumar, Shri S.C. Pahwa and Shri B.S. Nakra were waiting for him.
1.10 Shri S.C. Pahwa told Shri H.S. Gill that he has brought Rs.5000/. Accused H.S. Gill agreed to accept Rs.5000/ and further assured him to release the computers on 11.02.2003. At this stage Shri S.C. Pahwa asked Shri B.S. Nakra to hand over the (tainted) bribe money to accused H.S. Gill. Shri B.S. Nakra took out Rs.5000/ (Rupees five thousand only) from his left shirt pocket with his right hand which was accepted by accused H.S. Gill by extending his left hand and kept the tainted amount in his left side pant pocket. At about 8.30 PM shadow witness Mam Raj Kumar flashed pre appointed signal to the trap team. After receiving the signal, all the members of the trap party and witness Shri G.V. Murthy rushed towards H.S. Gill and identity of trap team was disclosed to him. RC No. 10A/2003/CBI/ACB/CBI/New Delhi 6 H.S. Gill was challenged as to whether he had demanded bribe of RS.15,000/ and accepted Rs.5,000/ from Shri S.C. Pahwa for releasing his three computers. Accused H.S. Gill started running. After chasing about 510 meter, H.S. Gill was caught by Inspector Surender Malik and Inspector R.C. Garvan by his left and right wrists respectively. H.S. Gill made all efforts to get him released but he was over powered. On being asked, none of the people gathered there were willing to be a witness of the proceedings. Independent witness Shri Mam Raj Kumar confirmed about the demand and acceptance of bribe by accused H.S. Gill and his version was corroborated by Shri B.S. Nakra and Shri S.C. Pahwa. 1.11 Shri Mam Raj Kumar recovered the GC notes from the left side pocket of accused H.S. Gill. Copy of 'Handing Over Memo' was given to Shri Mam Raj Kumar and the recovered GC notes to witness Shri G.V. Murthy. Both the independent witnesses were asked to compare the GC notes with the numbers of recovered GC notes. On comparison, it was found that numbers of recovered GC notes from the pocket of accused were tallied with the numbers of GC notes recorded in the 'Handing Over Memo'.
1.12 As per chargesheet, a colourless solution of sodium carbonate was prepared in a neat and clean tumbler. Accused dipped his left hand fingers in the said colourless solution and on doing so the colourless solution turned pink in the colour. The said solution was transferred in a neat and clean glass bottle and the RC No. 10A/2003/CBI/ACB/CBI/New Delhi 7 same was sealed with CBI seal. A paper slip marked "LHW" denoting Left Hand Wash of accused was pasted on the bottle.
1.13 Another colourless solution of sodium carbonate was prepared in a neat and clean tumbler and the left pocket pant (camel colour) wash was taken. This solution was also sealed in a glass bottle after wrapping its neck with cloth piece. A paper slip marked "LSPPW" denoting Left Side Pant Pocket Wash was pasted on the said bottle.
1.14 The digital voice recorder was rewound and heard which corroborated the version of witness Shri Mam Raj Kumar, Shri B.S. Nakra and Shri S.C. Pahwa. The data of Digital Recorder containing conversation was transferred in a new blank audio cassette (TDK D60) with the help of the Sanyo Compact Cassette Recorder and the cassette was sealed. A rough site plan showing the position of trap team members, complainant, witnesses, Shri S.C. Pahwa and accused H.S. Gill was prepared. A recovery membo was prepared on the spot incorporating all the post trap proceedings.
1.15 As per chargesheet, specimen voice of accused was recorded and the questioned voice cassette were forwarded to CFSL, New Delhi. CFSL opined in its report that questioned voice is similar to the specimen voice in respect of their linguistic and phonetic features. Transcription of the telephonic conversation was RC No. 10A/2003/CBI/ACB/CBI/New Delhi 8 prepared.
1.16 The left hand wash (LHW) and left side pant pocket wash (LSPPW) of the accused H.S. Gill seized during the trap proceedings were also forwarded to CFSL, New Delhi for chemical examination. It was opined that the exhibits LHW and LSPPW gave positive tests for the presence of phenolphthalein and sodium Carbonate.
1.17 It was further revealed in the investigation that accused H.S. Gill while functioning as Inspector, Delhi Police in the capacity of Addl. SHO, Special Cell, Lodhi Colony, New Delhi led the team of Special Cell for conducting raid and locked the portion of the said premises which was in possession of M/s. Primus Network. Before leaving the said premises, the keys of the premises were kept by the accused. During investigation it was revealed that four computers alongwith accessories were lying in the premises of M/s. Primus Network out of which one computer which was connected to the equipment used for running illegal telephone exchange was seized by the Special Cell whereas other three computers were also found there. Videography of the premises of M/s. Primus Network was carried out during investigation in the presence of independent witnesses on 12.02.2003. These computers were seized and were released to the complainant by the order of the court. During investigation it was found that mobile phone no.9811236919 had been issued in the name of accused H.S. Gill. RC No. 10A/2003/CBI/ACB/CBI/New Delhi 9 1.18 As accused was public servant, sanction for prosecution was requested by CBI which was granted by Shri Karnal Singh, Addl. Commissioner of Police, Special Cell, Delhi vide sanction Ex.PW3/A. 2 After completion of investigation, chargesheet was filed before the court. Vide order dated 30.04.2004, court took cognizance and summoned the accused who was already released on bail. Copies were supplied to the accused as required u/s 207 Cr.P.C. After hearing arguments on charge, charge was framed against accused H.S. Gill on 02.08.2005 for the offence u/s 7 and u/s 13(1) (d) r/w sec. 13(2) of Prevention of Corruption Act, 1988 to which accused pleaded not guilty and claimed trial.
3 In prosecution evidence, 16 witnesses have been examined. PW1 Shri Sarvendra Singh son of Shir C.P. Singh, Director Vigilance, Department of Telecommunication, Ministry of Communication and IT stated that on 02.02.2003 a call was received from Shri G.S. Sharma, Manager Vigilance, VSNL that as per information an illegal telephone exchange for international calls have been detected by the Special Cell, Delhi Police in Sant Nagar Area of Delhi. He alongwith Shri G.S. Sharma reached at the premises no.230, Sant Nagar where police team was already there. Inspection report of illegal set up and layout diagram was prepared. As per testimony, the call detail record confirmed RC No. 10A/2003/CBI/ACB/CBI/New Delhi 10 international calls. He proved joint inspection report Ex.PW1/A bearing his signature. He stated that SI Gurdev Singh, Special Cell of Delhi Police was present at the spot. He proved layout diagram Ex.PW1/B. As per PW1 Sarvendra Singh, equipment shown in layout diagram was seized by the police vide memo Ex.PW1/C which bears his signature. Sample of call detail record was proved by him as Ex.PW1/D. In his crossexamination he stated that all the documents Ex.PW1/A to Ex.PW1/D bear the signatures of SI Gurdev Singh. He also deposed that no person namely C.P. Singh, Manager Vigilance, VSNL was within his knowledge.
3.1 PW2 Shri S.C. Pahwa is the proprietor of M/s. Ambifin Systems. He supported his case in respect of renting of computers to M/s. Primus Network, seizure of computers, demand of bribe of Rs.20,000/ which was reduced to Rs. 15,000/ by Inspector H.S. Gill, complaint lodged by Shri B.S. Nakra, pre trap proceedings and demand and acceptance of bribe by accused H.S. Gill. He proved bills in respect of renting of four bills Ex.PW2/B1 to Ex.PW2/B7, complaint written by Shri B.S. Nakra in his presence Ex.PW2/D, handing over memo Ex.PW2/E bearing his signature at point B, GC notes Ex.P1 to Ex.P9, pre trap proceedings memo Ex.PW2/F, letter dated 04.03.03 containing details of four computers given by his firm on rent Ex.PW2/G, memo of transcription Ex.PW2/H, and transcription Ex.PW2/J. During his testimony, the audio cassette containing conversation with accused was played and he identified the voice of accused and RC No. 10A/2003/CBI/ACB/CBI/New Delhi 11 other persons and at some places he could not identify the voice mentioned in transcription. He was crossexamined by ld. PP for CBI as he resiled from his earlier statement on some points. Thereafter, he was also crossexamined by ld. defence counsel.
3.2 PW3 Karnail Singh, Joint Commissioner of Police, Special Cell, Police Head Quarter was sanctioning authority. He stated that on 05.04.04 file was placed before him alongwith documents including statement of witnesses recorded u/s 161 Cr.P.C. After going through the file and considering the documents he applied his mind and then accorded sanction for prosecution of accused H.S. Gill. He proved sanction for prosecution Ex.PW3/A. PW3 stated in his crossexamination that he is not aware, whether any post of Addl. SHO existed during his tenure? He stated that case of M/s. Ambifin Systems was never assigned or looked after by Inspector H.S. Gill. He denied the suggestion that he merely signed the typed draft sanction without application of mind. 3.3 PW4 Dr. Rajinder Singh was from CFSL. He appeared as an expert and proved his report Ex.PW4/A. He stated that after examination he concluded that questioned voice tallied with the specimen voice of H.S. Gill. As per report Ex.PW4/A, the total duration of conversation is 26 minutes and 35 seconds approximately. The initial recorded conversation of duration 2 minutes 15 seconds is on telephone and the rest of conversation of duration 24 minutes 20 RC No. 10A/2003/CBI/ACB/CBI/New Delhi 12 seconds is on direct spot recording.
3.4 PW5 Shri B.S. Nakra was the complainant in the case. He was working as CEO in M/s. Ambifin Systems. He supported the testimony of PW Shri S.C. Pahwa in respect of four computers given on rent to M/s. Primus Network, seizure of four computers at the premises by Special Cell, Delhi Police, the conversation with accused H.S. Gill, lodging of complaint with CBI, pre trap proceedings, at the spot proceedings and demand and acceptance of bribe by accused. He stated that complaint dated 10.02.2003 Ex.PW2/D is in his own handwriting and signed by him. He also stated that FIR dated 10.02.2003 Ex.PW5/A also bears his signatures. During examinationinchief, he identified the voice recorded in audio cassette and transcript Ex.PW2/J. There were voices after portion CC27 to CC28 which were neither mentioned in the transcription nor identified by this witness. This witness failed to identify the accused despite leading questions from the ld. prosecutor which was asked after seeking permission of the court. PW5 admitted during crossexamination that Shri Pahwa was Govt. employee being posted as Child Welfare Officer in Gurgaon and Faridabad AND HE was arrested in connection with cases of cheating at Gurgaon and Faridabad. During crossexamination, he stated that he could not identify the voice of H.S. Gill as no such voice was recorded in his presence in CBI office.
RC No. 10A/2003/CBI/ACB/CBI/New Delhi 13 3.5 PW6 Shri Mam Raj Kumar was included in the raiding team as independent witness and he acted as a shadow witness.
3.6 PW7 Mahesh Chandra Gupta, LDC, Personnel Branch, Vikas Sadan, INA, New Delhi stated that in the year 2003 he was directed by his office to report to CBI office of CGO Complex. He had witnessed the specimen voice recording memo dated 11.02.2003 which was proved as Ex.PW7/A. 3.7 PW8 Shri Deepankar Bhattacherjee was a trainee of M/s. Ambifin Systems run by its proprietor Shri S.C. Pahwa. He stated that on 12.02.2003, he alongwith Shri B.S. Nakra had gone to Sant Nagar to the premises of a firm to which four computers were given on rent. Police was already present there in the premises and in his presence videography memo Ex.PW8/A was prepared. He also identified the cloth wrapper containing the video cassette and the video cassette as Ex.PW8/B and Ex.PW8/C respectively.
3.8 PW9 G.V. Murthy was also one of the independent witness included in the trap team. He deposed in support of prosecution case on the material points in respect of pre trap and post trap proceedings.
3.9 PW10 Inspector Sanjeev Kumar was posted in Special Cell, Delhi Police. He deposed that case file of FIR no.5/03 of PS Lodhi Colony containing attested RC No. 10A/2003/CBI/ACB/CBI/New Delhi 14 copies of case file were handed over by him to Inspector Anil Kumar which was seized vide memo Ex.PW10/A. File was collectively proved as Ex.PW10/B. 3.10 PW11 Inspector Gurdev Singh from PS Ranjit Nagar, New Delhi stated that on 02.02.2002, he was posted as SubInspector. He conducted raid at House No. 320, Ground Floor, Sant Nagar, New Delhi alongwith other police officers while leading the raiding party. He deposed that an illegal telephone exchange was found to be located in the premises and therefore, equipments installed in the premises alongwith computers were seized by him. He stated that notice Ex.PW11/A issued u/s 160 Cr.P.C. bears the signature of Inspector H.S. Gill. He also deposited that he did not summon Mohinder Pal Kaur as mentioned in the summons. Accused H.S. Gill had no connection with the case as he was the independent IO of the case. PW11 also stated that Inspector H.S. Gill did not tell him while Mohinder Pal Kaur was summoned by him u/s 160 Cr.P.C. This witness was crossexamined by ld. Sr. PP as he was resiling from his earlier statement. 3.11 PW12 Shri C.L. Bansal was the Sr. Scientific Officer from CFSL. He proved his report Ex.PW12/A in respect of chemical examination of LHW and LHPPW.
3.12 PW13 Shri Suresh Kumar stated that on 11.02.2003 he alonwith Mahesh Chand Gupta had gone to CBI office. Accused H.S. Gill was present in CBI RC No. 10A/2003/CBI/ACB/CBI/New Delhi 15 office. In his presence, specimen voice of accused was recorded. He stated that he made the telephonic call to H.S. Gill and then the voice was recorded. He also stated that sample voice recorded in the cassette was sealed in a cloth wrapper. 3.13 PW14 Inspector Surender Malik was the TLO. He supported the prosecution case and proved the relevant documents. During crossexamination he stated that the raiding party reached near the office of Special Cell and first call was made by the complainant to the accused at about 8.00 PM. Number of telephone from which call was made was not recorded. He stated that he does not remember who made the second call to the accused and from which telephone number same was made. According to him, in between above mentioned two calls, members of the raiding party had taken their position but the complainant and shadow witness were together. He deposed that panchnama and seizure memo Ex.PW2/F was recorded as per the watch. He challenged the accused after introducing himself and asked, whether he had demanded and accepted the money from the complainant? He had spoken these words in normal voice when the complainant Nakra and other witnesses were nearby. He stated that tape recorder, handed over to the complainant, was taken by him in the police station and by that time the hand wash of accused had already been taken. He could not tell whether the proceedings continued till 9.00 PM, 10.00 PM or 11.00 PM. He stated that in transcription Ex.PW2/J, the conversation recorded therein till point Z took place from the office of M/s. RC No. 10A/2003/CBI/ACB/CBI/New Delhi 16 Ambifin Systems and from Z1 to Z2 is the conversation that took place during the first call. He stated that there is no conversation of second call and remaining conversation is related to the spot. He also admitted that conversation of accused H.S. Gill is shown from point C42 and as per transcription, there is no introduction by the complainant Shri Pahwa of his partner Shri Mam Raj Kumar to accused as his partner. The conversation in respect of the challenge given by him to the accused in respect of demand and acceptance of bribe is also not in the transcription. He stated that to his knowledge no member of raiding party had gone inside the police station to call H.S. Gill and this fact was not recorded in memo Ex.PW2/F. PW14 also admitted during crossexamination that there is no record on file of any entry being made in DD of PS Lodhi Road nor any witness from the police station was cited. He admitted that no police official from PS Lodhi Road (where post trap proceedings was conducted) joined as a witness to the proceedings. He stated that in arrest memo Ex.PW6/A it was recorded that it was prepared at the spot i.e. PS Lodhi Road but it does not record anywhere that memo Ex.PW6/A was prepared in the police station. He stated that after apprehension of accused, one or two calls were received on his mobile phone and when he started attending them he was directed not to do so, but the receipt of these calls was not mentioned anywhere. He stated that he did not seize the mobile phone of accused on the receipt of first call but directed him not to use mobile phone. He stated that hands of accused were set free after taking hand wash and before taking hand wash, no call was received on his mobile phone. He RC No. 10A/2003/CBI/ACB/CBI/New Delhi 17 admitted that investigation of the accused was transfered from him in the first week of March. He denied the suggestion that no demand was made by the accused or the accused was apprehended when he came out from his office at 9.15 PM or he was taken straightway to CBI office or that no proceedings took place in police station or that tape recorded version was prepared by coercing the accused.
3.14 PW15 Shri Deepak Gupta was DGM (Legal) from VodafoneEssar. He stated that he handed over the certified copy of application form alongwith its annexures in respect of mobile phone no.9811236919 in the name of Shri Harjinder Singh Gill. He proved application forms and annexures as Ex.PW15/B (colly.) and call details for the period 01.02.03 to 24.03.03 Ex.PW15/C. He stated that calls received from 10.02.03 between 19.24 hrs to 21.09 hrs are at point X1 to X9 whereas call received at 18.35 hrs is at point X10. 3.15 PW16 Inspector A.K. Singh was the IO of the case who took over the investigation on 03.03.03. He concluded the investigation and prepared the chargesheet.
4 Statement of accused was recorded u/s 313 Cr.P.C. Accused denied the incriminating evidence. He stated that he was working as Inspector in Delhi Police and was borrowed in Special Cell by the Senior Officers but his job as RC No. 10A/2003/CBI/ACB/CBI/New Delhi 18 Inspector always remained in Special Branch. He came to know that SI Gurdev Singh of Special Cell on receipt of an information regarding illegal telephone exchange being run by Shri Ashish Gupta and others at Sant Nagar, New Delhi at the premises of M/s. Primus Network registered a case and seized all the computers and equipments of M/s. Primus Network. The computer equipments belong to Shri S.C. Pahwa, the owner of M/s. Ambifin Systems. Shri B.S. Nakra and Shri S.C. Pahwa were apprehending their arrest for running illegal telephone exchange. Shri S.C. Pahwa had a criminal record and he was earlier arrested in a case FIR no.466/94 of PS Kotwali, Faridabad (Haryana) for the offence u/s 420, 467, 468, 471 and 409 IPC. In his statement accused also stated that Shri S.C. Pahwa was also arrested in a case FIR no.4/98 u/s 420, 409, 120B IPC by State Vigilance Bureau of Gurgaon (Haryana). He further stated that Shri S.C. Pahwa was earlier working as Distt. Kalyan Officer at Gurgaon and Faridabad. He was dismissed from the service by the Govt. on the allegations of cheating and corruption. Shri S.C. Pahwa is in the habit of making false complaints. He also made false complaints against senior officers also. Accused H.S.Gill also stated that Shir B.S. Nakra being the employee of Shri S.C. Pahwa worked and acted against him as per the directions of Shri S.C. Pahwa. Shri S.C. Pahwa had withheld the salary of Shir B.S. Nakra for several months. Therefore, Shri B.S. Nakra had complied with all the illegal instructions and acted against him to implicate in a false case. From Smt. Mohinder Pal Kaur, Shri S.C. Pahwa came to know that she was served notice by him and therefore, he presumed that he was RC No. 10A/2003/CBI/ACB/CBI/New Delhi 19 the IO of the case. Accused H.S. Gill also stated that Shri S.C. Pahwa was apprehending his arrest and therefore, he directed Shri B.S. Nakra to lode a false complaint against him. He further stated that IO of the case Inspector Surender Malik and himself were investigating the case pertaining to illegal telephone exchange and their informer was Department of Telecommunication. Because he managed to get more cases than the IO Inspector Surender Malik, therefore, IO Surender Malik had grudge against him. IO Surender Malik without verifying the contents of the complaint lodged by Shri B.S. Nakra, hurriedly acted and lodged case against him.
4.1 Accused also stated that on 10.02.03 at about 9.15 PM when he came out of his office and reached towards the main gate, he was suddenly apprehended by Surender Malik with the help of his associates and was forcibly taken to CBI office in a car. He stated that he never demanded bribe either from Shri B.S. Nakra or Shri S.C. Pahwa or anybody else. He neither demanded nor received any bribe from anyone. He stated that all the documents were falsely prepared in the office of CBI. According to him, he was forced to speak certain lines as per the instructions and direction of IO and false tapes/conversations were prepared against him. He stated that he has been falsely mentioned as Addl. SHO whereas there is no post of Addl. SHO in PS Special Cell at that time. IO Inspector A.K. Singh falsely inserted a factious witness in the charge sheet in the name of Shri C.P. Singh, though no person namely C.P. Singh was working at RC No. 10A/2003/CBI/ACB/CBI/New Delhi 20 that time. Accused pleaded his innocence and stated that he has not committed any offence.
5 In defence evidence as many as six witnesses have been examined by the accused. DW1 ASI Mahinder Singh posted at Special Branch, Police Bhawan, Asaf Ali Road, New Delhi stated that as per record Inspector H.S. Gill was posted as Inspector in Special Branch, Asaf Ali Road, New Delhi but he remained on duty in Special Cell, Lodhi Colony, New Delhi w.e.f. 12.06.1995 to 18.05.2006. He also stated that Inspector H.S. Gill was not posted in the capacity of Addl. SHO in Special Cell from 2002 uptill now. He proved the report from SHO PS Special Cell, Delhi Police Ex.DW1/A. 5.1 DW2 SI Rajender Prasad from Establishment Branch, Police Head Quarters, ITO, New Delhi proved the notification Ex.DW2/A and stated that as per notification dated 26.03.2002 issued by Lt. Governor of NCT of Delhi for establishment of PS Special Cell. He stated that from the Ministry of Home Affairs, no sanction was received for the post of Addl. SHO in PS Special Cell. 5.2 DW3 Shri Yash Pal stated that earlier he was posted in VSNL. As per record, no official namely C.P. Singh or C.P. Chopra had ever been posted in the office of VSNL.
RC No. 10A/2003/CBI/ACB/CBI/New Delhi 21 5.3 DW4 Shri Rajiv, Jr. Assistant in the Department of Haryana State Council for Child Welfare proved the dismissal order Ex.DW4/A pertaining to the dismissal of Shri S.C. Pahwa. He stated that as per record Shri Pahwa was dismissed from the service in 1997.
5.4 DW5 Shri Rajinder Singh stated that accused H.S. Gill is his real younger brother. He stated that on 10.02.2003 he was posted as District Health Officer Faridkot, Punjab. He proved experience certificate issued by Civil Surgeon, Faridkot Ex.DW5/A and his identity card Ex.DW5/B. He stated that he was provided official landline phone no.250530 with STD code 01639 at his residence. He proved original bill of his telephone from 01.06.03 to 31.07.03 attested by Civil Surgeon, Faridkot for Rs.1000/ Ex.DW5/C. DW5 stated that on 10.02.03 at about 8.30 PM, he made a telephone call from his above mentioned landline official phone of his residence at the mobile phone of H.S. Gill bearing no. 9811236919. He talked H.S. Gill for about 6090 seconds. He asked H.S. Gill whether he was free from duty as he wanted to talk some family matters to H.S. Gill. H.S. Gill told that he was still working in his office and would be free by 9.15 PM. Next day, he came to know that H.S. Gill had been arrested by CBI. 5.5 DW6 Govind Singh stated that accused H.S. Gill is his family friend and known to him since 1994. He stated that landline phone no.24610320 was installed at his address at Defence Colony, New Delhi. He brought certificate RC No. 10A/2003/CBI/ACB/CBI/New Delhi 22 dated 02.08.2011 issued by Department of Telephone Exchange, Jor Bagh, New Delhi. Telephone was in the name of his brotherinlaw Gurdeep Singh Chandok who was residing in Noida. As in those days it was difficult to get telephone number, his brotherinlaw had given this telephone connection to him being a spare connection with him. DW5 proved his voter I. Card in respect of his address. He stated that he had talked to H.S. Gill on his mobile phone on 8 th, 9th and 10th February 2003. On 10.02.03 at about 8.25 PM he talked to H.S. Gill on his mobile phone and he stated that he was in office and will be free by 9.15 PM. H.S. Gill stated that he may come at about 9.15 PM at PS Lodhi Colony. He again made a telephone call at 9.00 PM and H.S. Gill again stated that he would come at the gate at about 9.15 PM. At about 9.15 PM, he again telephoned him from public telephone and H.S. Gill stated that he was coming. When DW6 reached at PS Lodhi Colony within 23 minutes and asked the guard about H.S. Gill. Guard told him that 1520 persons came there and took away H.S. Gill, with them in the vehicle.
6 I have heard ld. Sr. PP Shri A.K. Gaba and ld. defence counsel for accused Shri I.S. Kapoor. I have gone through the chargesheet, testimony of witnesses and documents proved on record. I have carefully considered the written submissions filed on behalf of accused and arguments advanced at bar. I have also heard the recorded conversation on audio cassette.
RC No. 10A/2003/CBI/ACB/CBI/New Delhi 23
7 Ld. Sr. PP submitted that in order to prove its case prosecution has to
prove the following material aspects:
(a) Demand of bribe by Public Servant
(b) Acceptance of bribe by Public Servant
(c) Recovery of bribe amount from Public Servant
8 Ld. Sr. PP submitted that complainant Shri B.S. Nakra, PW Shri S.C.
Pahwa and shadow witness Shri Mam Raj Kumar have clearly stated that accused demanded the bribe amount and received the same from the complainant and this fact is corroborated by the recorded telephonic conversation. Ld. Sr. PP pointed out that version of PWs Shri S.C. Pahwa, Shri B.S. Nakra and Shri Mam Raj Kumar is corroborated by the fact that money was recovered from the pocket of accused and PWs have supported this version. Hand wash and pant pocket wash of accused confirmed the presence of sodium carbonate as per the report of CFSL. It was stated that allegations of demand and acceptance of bribe by accused is not only supported by all the PWs but also corroborated by the the recorded audio cassette and transcript. Ld. prosecutor pointed out that discrepancies/contradictions pointed out in the testimony of witnesses are minor in nature which does not affect the credibility of the witnesses. It was submitted that some discrepancies pointed out in the recorded conversation pertaining to the timings and certain portions are not material as the genuineness and authenticity of the recorded conversation has been proved by RC No. 10A/2003/CBI/ACB/CBI/New Delhi 24 PW4 Dr. Rajender Singh.
9 Ld. defence counsel submitted that prosecution is under obligation to prove its case beyond reasonable doubt. If the version of the prosecution appears to be doubtful, the benefit of doubt should be given to the accused. Ld. defence counsel submitted that standard of proof for the accused is different from prosecution whereas prosecution has to prove its case beyond reasonable doubt, accused is required to prove his defence in balance of probabilities. In support of his contention ld. defence counsel referred Bhagirath Vs. State of MP AIR 1976 SC 75 wherein it was held that....
"Prosecution can succeed by substantially proving from story it alleges. It must stand on its own legs. It cannot take advantage of weakness of defence nor can the court on its own make out a case for prosecution and convict the accused on that basis"
10 Ld. defence counsel submitted that in trap cases, under Prevention of Corruption Act, court is required to scrutinize the evidence carefully. Generally, Trap Laying Officer is interested in success of the trap at any cost. Complainant is an interested party. Technology in respect of chemical analysis of hand wash and examination of recorded conversion has its own limitation. Ld. defence counsel submitted that there are material contradictions in the testimony of PWs RC No. 10A/2003/CBI/ACB/CBI/New Delhi 25 Shri S.C. Pahwa, Shri B.S. Nakra, Shri Mam Raj Kumar and Inspector Surender Malik which cannot be ignored. The testimony of these material witnesses is neither in consonance with the prosecution story nor with the recorded conversation. The testimony of witnesses contradicts the recorded conversation whereas the recorded conversation makes the testimony of witnesses unreliable. It was pointed out that DWs have clearly stated that accused was present in his office till 9.15 PM. During this period he had received the telephonic calls as proved on record. In case accused would have been arrested at 8.30 PM, as per the prosecution case, he could not have been present in his office till 9.15 PM nor there was any probability that he could have been allowed to receive telephonic calls on his mobile phone. Ld. defence counsel submitted that PW Shri S.C. Pahwa is not a reliable witness. He is in the habit of making false complaints even against his senior officers. When he was in the service of the Govt., he was terminated from the service and was facing criminal prosecution for the offence of cheating and forgery. In these circumstances, his testimony should not be relied without corroboration on material facts. Ld. defence counsel pointed out that TLO Inspector Surender Malik had a grudge against the accused as both were involved in tracking in same type of cases pertaining to illegal telephone exchanges. Therefore, his testimony should not be relied because he is an interested witness and his testimony does not create a ring of truth. 11 PW2 Shri S.C. Pahwa, PW5 Shri B.S. Nakra, PW6 Shri Mam Raj Kumar, RC No. 10A/2003/CBI/ACB/CBI/New Delhi 26 PW9 Shri G.V. Murthy and PW14 Inspector Surender Malik are the material witnesses in respect of handing over the bribe amount by Mr. B.S. Nakra and accepting the bribe amount by accused H.S. Gill as well as the pre and post trap proceedings. The testimony of these witnesses suffers from some of the following contradictions/discrepancies: Testimony of PW2 Shri S.C. Pahwa
(a) Shri S.C. Pahwa deposed that he did not make the telephone calls from PCO at 8.15 PM to accused H.S.Gill but Shri B.S. Nakra had made the call whereas as per prosecution case this call was made by him.
(b) Shri S.C. Pahwa stated that Shri G.V. Murthy was the shadow witness during pre trap proceedings. Shri G.V. Murthy was instructed to act as shadow witness and remain close with Shri Pahwa during conversation. But, as per the version of prosecution PW Shri Mam Raj Kumar was shadow witness.
(c) After two calls made by PW Nakra from PCO to accused H.S. Gill when accused did not come PW Shri Nakra was sent inside police station to call the accused. He came back after five minutes and RC No. 10A/2003/CBI/ACB/CBI/New Delhi 27 informed Shri Pahwa in the presence of Shri G.V. Murthy that accused H.S. Gill was coming out after five minutes. After ten minutes accused H.S. Gill came out. As per prosecution case, accused H.S. Gill came out of his office after the second call from PCO and the prosecution version that Nakra had gone inside the office of accused to call him is not supported by the other PWs.
(d) Shri Pahwa deposed that while passing the money, Shri Nakra had conversation with accused whereas no such conversation has been found in the transcript.
(e) According to PW Shri Pahwa after the hand wash of accused, wash of the pant pocket was not taken in his presence. PW2 Shri Pahwa stated that IO Shri Surender Malik asked Sardarjit to take out money from his pant pocket. But according to seizure memo Mam Raj Kumar took out money from the pant pocket of the accused.
(f) Tape recorded conversation was not played. However, he returned the same to the CBI officials at the spot whereas according to the panchnama, the Digital Record was rewound and heard by him.
(g) PW2 Shri Pahwa stated that he had signed the transcript without RC No. 10A/2003/CBI/ACB/CBI/New Delhi 28 hearing audio cassette which is contrary to the prosecution version and PW2 was declared hostile.
(h) In the crossexamination PW2 Shri Pahwa stated that he made the call from PCO and kept waiting outside the police station. As per prosecution version no one from the raiding party went to call accused H.S. Gill from his office. Surprisingly, from the bare perusal of the transcript it is clear that Shri Nakra had gone to the office of H.S. Gill to call him. PW2 stated in his crossexamination that sound recording instrument was taken from him in the room of SHO PS Lodhi Road and at that time it was in "on position". If this version is accepted, then the total duration of conversation recorded in Digital Voice Recorder cannot be of 24 minutes and 20 seconds as mentioned in CFSL report. If the Digital Voice Recorder was taken in the office of PS Lodhi Road, there should have been certain conversation which took place with the accused in the room of SHO but no such conversation was found either in the audio cassette sent to CFSL nor in the transcript Ex.PW2/J. Testimony of PW5 Shri B.S. Nakra
(a) PW5 Shri Nakra stated that shadow witness was introduced as one RC No. 10A/2003/CBI/ACB/CBI/New Delhi 29 of the partner by PW2 Shri Pahwa but this fact does not find mentioned in the recorded conversation or in the transcript.
(b) According to PW5 Shri B.S. Nakra, accused accepted the bribe and kept it in the pocket of his coat. One of the independent witness has recovered the bribe amount from his coat pocket. Contrary to it the prosecution version is that accused has taken the bribe amount in his left hand and kept in the left side pant pocket.
(c) PW5 Shri Nakra stated that first accused was taken to SHO's room, proceedings were conducted for some time and thereafter he was taken to CBI office. He failed to remember how many documents were signed by him in PS Lodhi Road and how many documents were signed in CBI office.
(d) According to PW5 Shri Nakra, the person apprehended by CBI was carrying mobile phone but he was not talking on his mobile phone at the time of his apprehension. He did not admit that the said person continued talking on his mobile phone from 8.15 PM to 9.00 PM on regular intervals. This version of the witness is contrary to the record of statement of calls Ex.PW15/C. RC No. 10A/2003/CBI/ACB/CBI/New Delhi 30
(e) PW5 Shri Nakra stated that he did not make any telephone call to anyone for calling him (accused H.S. Gill) from inside the Special Cell office but the transcription mentions that he had gone to accused office and made calls from the reception.
Testimony of PW6 Shri Mam Raj Kumar
(a) PW6 does not allege about the raiding party going to the office of Shri S.C. Pahwa before reaching at the spot at Lodhi Colony. But, as per the prosecution case, raiding party first reached at the office of Shri S.C. Pahwa from where accused H.S. Gill was contacted on his phone and this telephonic conversation was recorded which reflected the demand of Rs.15,000/ by accused who agreed to accept Rs.5,000/ on that day.
(b) PW6 Shri Mam Raj Kumar deposed that PW Shri Pahwa telephoned accused H.S. Gill on his mobile phone from the main gate and accused came over there within 57 minutes. But, according to prosecution version Shri Pahwa made telephone calls to accused H.S. Gill twice from PCO. There is no reference of first telephonic call made by Shri S.C. Pahwa to accused H.S. Gill. PW6 Shri Mam Raj Kumar stated that he was introduced as partner of RC No. 10A/2003/CBI/ACB/CBI/New Delhi 31 Shri S.C. Pahwa to accused H.S. Gill but there is no such conversation in the transcript Ex.PW2/J.
(c) PW6 Shri Mam Raj Kumar stated in his crossexamination that he did not see the man (who was apprehended) walking with mobile phone and the mobile phone was not recovered in his presence. But, as per personal search memo Ex.PW2/F, mobile phone was recovered from the possession of accused and the mobile phone record is reflected in call records Ex.PW15/C.
(d) PW6 Shri Mam Raj Kumar stated that he does not know if a Digital Recorder was used in this case. As per prosecution case he was shadow witness and the instructions were given in pre trap proceedings in his presence that Digital Voice Recorder will be kept by the complainant. This was a material fact in the case and there is no scope of his forgetting this most material fact. Handing Over Digital Recorder Memo bears his signatures.
(e) PW6 Shri Mam Raj deposed that PS Lodhi Colony is situated on the main road. Accused was caught 78 feet inside the main gate of the police station. But, the site plan and the recovery memo does not corroborate this version of the witness. PW6 gave different RC No. 10A/2003/CBI/ACB/CBI/New Delhi 32 version about the presence of SHO/Addl. SHO/Ladies SHO when they reached at the PS Lodhi Road and his version is contrary to the prosecution case.
Testimony of PW9 G.V. Murthy
(a) PW9 Shri G.V. Murthy deposed that in complainant's office, complainant talked with somebody and told him to come to his office and he would give the money whereas prosecution case is that complainant did not call the person on telephone to his office.
(b) PW9 Shri Murthy does not depose about any telephone call made from PCO.
(c) According to PW9 Shri Murthy, trap was arranged in PS Lodhi Colony. Shri Mam Raj Kumar and CBI officials were inside the gate. He alongwith Inspector Subramaniam were outside PS Lodhi Road whereas prosecution version is that incident occured on the road in front of the gate.
(d) PW9 Shri G.V. Murthy stated that Sardarji i.e. accused was feeling giddy and he was taken to hospital. But, according to prosecution RC No. 10A/2003/CBI/ACB/CBI/New Delhi 33 version there is nothing that accused was taken to hospital.
(e) PW9 Shri Murthy deposed that one almirah in police station belonging to Sardarji i.e. accused was opened and some documents were taken out from it and were seized. But, the office of accused was not situated in the PS Lodhi Road but was in different building of PS Special Cell, Lodhi Road. When he was declared hostile by prosecution, he denied his version and admitted the entire version of prosecution as suggested by Ld. PP.
(f) During crossexamination PW9 Shri Murthy reiterated that members of the raiding party were present in the compound of police station and after receiving the signal went inside the police station. He also reiterated that accused was taken to hospital which is contrary to prosecution case.
(g) PW9 deposed that he did not see the accused after 9.00 PM and the proceedings were conducted in the presence of accused which is contrary to the prosecution case.
(h) PW9 Shri Murthy stated that he did not visit in other building other than the police station. According to his testimony, he was not RC No. 10A/2003/CBI/ACB/CBI/New Delhi 34 aware that PS Lodhi Colony and PS Special Cell are located in two different buildings which contradicts prosecution case. Testimony of PW14 Surender Malik
(a) PW14 Inspector Surender Malik was the Trap Laying Officer (TLO).
He is most important prosecution witness. He stated that after receiving the pre arranged signal from PW Mam Raj, he alongwith other members of raiding party rushed towards the accused. He challenged the accused whether he has demanded bribe amount of Rs.15,000/ and accepted Rs.5,000/ for releasing of computers, but no such conversation was found in the audio cassette or the transcript Ex.PW2/J.
(b) PW Shri Mam Raj Kumar informed him that Shri S.C. Pahwa introduced him to the accused as his partner but this fact is not found in audio cassette or the transcript Ex.PW2/J.
(c) According to PW14 Inspector Surender Malik, tape recorder handed over to complainant was taken back in the police station during proceedings after taking the hand wash of accused but the transcript does not mention about any conversation from the point RC No. 10A/2003/CBI/ACB/CBI/New Delhi 35 of apprehension of accused.
(d) He admitted that there is no conversation in the transcript of second call made from PCO to call accused. He could not explain the different versions in the transcript.
(e) He stated that accused reached near trap team at 8.20 PM and thereafter he did not receive any call for half an hour. He also deposed that accused did not receive any call till hand wash but this version is not in consonance with call records Ex.PW15/C which shows that accused had not only received the calls but also made calls from his mobile phone between 8.00 PM to 9.30 PM. 12 The Panchanama regarding seizure of bribe amount Ex.PW2/F is an important document. As per this memo, trap proceedings was conducted in following manner as mentioned in Panchnama:
(a) In the office of CBI, GC notes of Rs.5000/ were treated with phenolphthalein powder. Thereafter, the notes were given to Shri B.S. Nakra who kept these notes in his pocket. He was instructed to handover the GC notes to Shri H.S. Gill on his specific demand. RC No. 10A/2003/CBI/ACB/CBI/New Delhi 36
(b) One Digital Voice Recorder was given to Shri S.C. Pahwa for recording the conversation between the accused and the members of raiding party.
(c) At about 6.30 PM, raiding party reached at the office of complainant i.e. M/s. Ambifin Systems. A call was made from land line phone to accused on his mobile phone and the conversation was recorded.
(d) At about 8.00 PM, all the members of raiding party reached at Lodhi Colony. Shri S.C. Pahwa made a call from PCO on the mobile phone of accused H.S. Gill.
(e) Shri S.C. Pahwa again made a telephonic call from the PCO to accused H.S. Gill after about 15 minutes on which accused informed Shri S.C. Pahwa that he (H.S. Gill) is reaching at the main gate of police station.
(f) At about 8.20 PM accused reached at the main gate of police station where shadow witness Shri Mam Raj Kumar, Shri S.C. Pahwa and Shri B.S. Nakra were present waiting for him.
(g) At about 8.30 PM, shadow witness Shri Mam Raj Kumar flashed RC No. 10A/2003/CBI/ACB/CBI/New Delhi 37 pre arranged signal to the trap team. At this, all the members of raiding team rushed towards accused H.S. Gill. Inspector Surender Malik, TLO after disclosing his identity as well as of other members challenged accused H.S.Gill as to whether he has demanded bribe amount of Rs.15000/ and accepted amount of Rs.5000/ from Shri B.S. Nakra for releasing his three computers.
(h) At this stage accused H.S. Gill started running and after chasing about 510 meter, H.S. Gill was caught by Inspector Surender Malik.
(i) Accused was brought to the room of SHO PS Lodhi Colony which was unoccupied at that time and the purpose was explained to the Incharge of police station at that time.
(j) Shadow witness informed that firstly Pahwa introduced him as his partner to the accused H.S. Gill. Accused H.S. Gill asked whether Shri Pahwa had brought the bribe amount on which Shri Pahwa said that they have brought Rs.5,000/ and the rest amount of Rs. 10,000/ would be paid on 11.02.2003. Accused H.S. Gill agreed to accept Rs.5,000/.
(k) Shri S.C. Pahwa asked Shri Nakra to hand over the bribe money RC No. 10A/2003/CBI/ACB/CBI/New Delhi 38 which Shri Nakra took out from his left shirt pocket and extended to accused which was accepted by him and the same was kept in his pocket. Other formalities were conducted at the police station.
(l) Digital Voice Recorder was rewound and heard which corroborates the version of the witnesses.
(m) Data of Digital Recorder was transferred in blank audio cassette.
(n) Thereafter, Shri M.S.Singhal was requested to search for the case file dealing with seizure/release of computers of Shri S.C. Pahwa in the office of Spl. Cell, Lodhi Colony alongwith Inspector Bala Subramaniam and Shri G.V. Murthy.
(o) At about 11.35 PM said persons after completing search in Special Cell came alongwith seized photocopy of documents.
(p) Panchnama was completed at about 12.15 PM on 11.02.2003 13 CFSL Report As per CFSL report, cassette mark A1 has recorded conversation among RC No. 10A/2003/CBI/ACB/CBI/New Delhi 39 persons on side A. The total duration of recording conversation is 26 minutes and 35 seconds. The recorded conversation of 2 minutes 15 seconds on telephone and the rest of the conversation of about 24 minutes and 20 seconds is direct conversation.
14 Duration of calls and prosecution case As per the statement of calls, on 10.02.03 at 6.35 PM one call was made from land line no.26294444 (from the office of M/s. Ambifin Systems) to the mobile phone of accused. Duration of call as per the statement of calls is 1 minute and 44 seconds. As per CFSL report conversation on telephone of duration 2 minutes 15 seconds was received by the CFSL which does not correspond to the duration of call of 1 minutes 44 seconds as mentioned in the statement of calls of mobile phone of accused (proved on record).
Recording of 24 minutes and 20 seconds has been shown in CFSL report Ex.PW4/A which appears to be fabricated due to the following reasons:
(a) Because the recorder was kept "on position" before 8.00 PM when the first call was made. It was taken back after the hand wash of accused and was done in the police station after recovery of tainted notes and at that time it was "on position".
RC No. 10A/2003/CBI/ACB/CBI/New Delhi 40
(b) Accused was apprehended after 30 minutes after the first call from PCO by Shri Pahwa. Under these circumstances the recording of 24 minutes and 20 seconds cannot be the recording of the proceedings at the spot. Recordings should have been for a duration of about 75 minutes i.e. from 8.00 PM to 9.15 PM. 15 Discrepancies in transcript of recorded conversation/Audio Cassette
(a) There is no conversation of second call made from PCO on the mobile phone of accused.
(b) No conversation of introduction given by Shri S.C. Pahwa about the shadow witness Shri Mam Raj Kumar as his partner
(c) Words spoken by IO disclosing his identity as well as identity of the other members of the trap team missing from the transcript.
(d) Words spoken by IO i.e. challenged accused H.S. Gill as to whether he had demanded bribe of Rs.15,000/ and accepted Rs.5,000/ from Shri S.C. Pahwa for releasing of his three computers are missing.
RC No. 10A/2003/CBI/ACB/CBI/New Delhi 41
(e) As per the transcript there is conversation which is not in the cassette and not mentioned in Panchnama.
(f) As per audio recording and transcript Ex.PW2/J from point C4 to CC35, there is conversation which indicates that Shri Nakra from trap party had gone to the office of accused and from reception of the office situated on ground floor made a call to the accused. Accused told that he was coming down stairs. It is also mentioned in the transcript that no one was allowed to go to his cabin during night hours so no one had gone to his cabin and that he informed on telephone that he was coming down stairs. At portion C7 it is mentioned that he had talked from the reception. At portion X12 of the transcription Ex.PW2/J it is mentioned that he asked from the guard who told that he (Gill) is coming down stairs and he (Nakra) told that he (Nakra) was standing outside. At portion CC35 it is mentioned that Shri Pahwa told Shri Nakra that he stayed there for some time so that accused could come alongwith him. But, PWs denied this version.
(g) At portion C28 it is metnioned that Shri Pahwa stated that now they are coming and why Shri Nakra is seen alone. They are coming, both are coming. After this conversation the other conversation has RC No. 10A/2003/CBI/ACB/CBI/New Delhi 42 been mentioned in the transcript which shows that accused Gill had not come so far. This created a doubt that tape recorded version has been fabricated and does not narrate the factual position as mentioned in the Panchanama. Tape recorded version goes against the version of prosecution and testimony of PWs.
16 Record pertaining to calls of mobile phone of accused According to seizure memo accused reached near raiding party at 8.20 PM and was apprehended at 8.30 PM. As per statement of witnesses accused talked Shri Pahwa and Shri Nakra for about 10 minutes. There is nothing in the Panchanama that accused has received any call after 8.20 PM (after he met the members of trap party). There is nothing in the transcript or in the tape recorded version that accused answered any call on his mobile. IO Inspector Surender Malik also admitted in his crossexamination that for about half an hour or more till the hand wash of the accused taken, he did not receive any call. Surprisingly, at 20.25 hrs. there is outgoing call from the mobile phone of the accused and there is another call at 20.27 hrs. of one minute received by the accused from land line number 2461320. DW Shri Goving Singh deposed that he made a call from his residence. Another call at 20.32 hrs. from land line no.01639250530 of 1 minute and 9 seconds duration was also received on the mobile phone of accused from his brother Dr. Rajinder Singh. DW Shri Govind Singh and Dr. RC No. 10A/2003/CBI/ACB/CBI/New Delhi 43 Rajinder Singh appeared as DW and deposed that they have made these telephone calls which has been duly shown in the record of telephone calls of accused Ex.PW15/C. As none of the call find mention of recorded conversation and transcript, it creates a serious doubt about the correctness of prosecution story.
17 Reliability of main prosecution witnesses PWs Shri S.C. Pahwa, Shri B.S. Nakra, Shri G.V. Murthy, Shri Mam Raj Kumar and Inspector Surender Malik are the material witnesses of the prosecution. The above mentioned discussion reflects that there are number of contradictions/discrepancies in their testimony pertaining to the material facts of the prosecution case. On some of the material facts their testimony is not in consonance with the recorded conversation as well as its transcript proved on record.
18 It is true that minor contradictions are natural in the testimony of any truthful witness. PWs cannot be expected to narrate the prosecution story like parrots unless they are tutored or planted witness. It is also established principle of law that the human memory is limited which may fade with the passage of time and therefore, witnesses may not be able to recall each and every detail of incidence. The human perception is also subject to limitation. In the same RC No. 10A/2003/CBI/ACB/CBI/New Delhi 44 circumstances, one witness may be able to observe a fact but another may not be. Similarly, due to limited perception, the same incidence may be perceived differently by the witnesses to the same incidence. Keeping in view the age, educational qualification, interest, character, antecedents and other factor, the testimony of witnesses requires appreciation. Court may ignore minor contradiction/discrepancies in the testimony of witnesses if feels, that witness is likely to fault due to fading memory. In every criminal case, there are certain material facts of the incidence which create almost a permanent imprint on the memory of witnesses. If on these material facts the witnesses fail, their testimony should be accepted with caution and as a rule of prudence, corroboration should be sought by the court.
19 As discussed above, the testimony of above mentioned material witnesses including complainant, shadow witness and TLO suffer from contradiction and infirmities on material facts of the case. Let's examine whether testimony of material PWs find sufficient corroboration?
20 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:RC No. 10A/2003/CBI/ACB/CBI/New Delhi 45
(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"
21 Lets consider the reliability of the tape recorded conversation in view of the above principles of law laid down by Hon'ble Supreme Court. 22 I have heard the tape recorded conversation. In the background of the tape recorded conversation at most of the places/portions, there is loud noise of RC No. 10A/2003/CBI/ACB/CBI/New Delhi 46 traffic/vehicles and horn blowing. Some of the portions are not clearly audible. As per the evidence, some of the portion could not be identified by the witness. As per the testimony of the witnesses, the tape recorded conversation should have been for a duration of about 75 minutes i.e. from 8.00 PM to 9.15 PM. The conversation is for a duration of about 26 minutes. Therefore, the possibility of erasing some portion of the conversation cannot be ruled out. Otherwise also, there is no explanation from the testimony of witnesses that if digital voice recorder was "on" from 8.00 PM to 9.15 PM, how conversation only for a period of about 26 minutes was recorded? Discrepancies in the duration of recorded conversation creates a serious doubt about the genuineness of the tape recorded conversation. Some of the portion of the recorded conversation like visit of Mr. Nakra in the office of accused are not supported by PWs. Some of the material facts which in ordinary course should have been in the tape recorded conversation were found missing (like the second call made from PCO immediately prior to the raid and the telephonic calls received by accused on his mobile phone between 8.20 PM to 8.30 PM and after his arrest till 9.15 PM does not find mention in the recorded conversation). Therefore, in my opinion, the recorded conversation does not create ring of truth.
23 It is clear from the evidence of TLO Inspector Surender Malik that recorded conversation was converted into audio cassette and the audio cassette was sealed. The original conversation was in the digital voice recorder whereas the RC No. 10A/2003/CBI/ACB/CBI/New Delhi 47 cassette prepared from the digital voice recorder was the copy. Surprisingly, digital voice recorder was not seized and the original recorded conversation was not preserved. Even the recorded conversation transferred on an audio cassette was sent to CFSL for opinion of the expert meaning thereby that CFSL report is based on the telephonic conversation transferred in audio cassette and not on the original telephonic conversation recorded in digital voice recorder. There is no satisfactory answer from the side of prosecution that why the original tape recorded conversation on digital voice recorder was not preserved as an authentic piece of evidence? It was pointed out by ld. Sr. PP that because digital voice recorders are reused in other cases, the conversation are transferred into audio cassette. Digital voice recorder is an electronic device worth of few thousand rupees which can be preserved by CBI as an original and authentic piece of evidence in respect of recorded conversation. 24 In view of the above discussion, in my considered opinion, the testimony of main prosecution witnesses suffers from contradictions as well as discrepancies on most material facts of the prosecution case. The tape recorded conversation also suffers from material discrepancies and therefore, does not appear to be reliable, credible and trustworthy. The entire evidence on record creates a serious doubt in the prosecution case and does not prove the charges against accused beyond the shadow of reasonable doubt. Accordingly, by giving benefit of doubt accused is acquitted. Personal bond and surety bond of accused stands RC No. 10A/2003/CBI/ACB/CBI/New Delhi 48 cancelled. In accordance with section 437A of Code of Criminal Procedure Shri H.S. Gill is directed to furnish a personal bond of Rs.50,000/ with one surety of like amount with an undertaking to appear before the Appellate Court in response of notice/process issued by the court in case of any appeal against the judgment.
File be consigned to Record Room after due compliance.
Announced in the open court SANJEEV JAIN
nd
on 22 day of October, 2011 Spl. Judge(PC Act), CBI02
RC No. 10A/2003/CBI/ACB/CBI/New Delhi 49